§ 153.3     Court-Imposed Conditions and Restrictions on Dismissal
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 153.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

One of the hot topics in consumer bankruptcy during the 1990s was the “discovery” that bankruptcy courts could impose conditions and restrictions on debtors at the dismissal of a Chapter 13 case. The absolute right to voluntarily dismiss under § 1307(b)1 was not quite so absolute: on the right facts, the effects of dismissal might include a prohibition on refiling2 by the debtor, a restriction on the automatic stay in a future case3 or perhaps a declaration that certain debts cannot be discharged in bankruptcy. Word spread quickly through the credit community that “dismissal with prejudice” was an available remedy for dealing with serial filers and general bad-guy debtors.

[2]

The principal source of all this new-found power is the brief negative predicate to 11 U.S.C. § 349(a):

Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.4
[3]

Finding cause to “order otherwise” under § 349(a)—sometimes bolstered by citations to § 105(a) or to Bankruptcy Rule 9011—a substantial number of reported decisions have dismissed Chapter 13 cases with some form of prejudice that is not already imposed by § 109(g). There is disagreement in the case law whether “dismissal with prejudice” means a bar to eligibility or a bar to future discharge of debt. There is disagreement whether § 349(a) authorizes barring a debtor’s eligibility in a manner that is different from the 180-day bar in § 109(g). Some courts are willing to bar the dischargeability of debt without limiting the refiling of a bankruptcy case except as already provided in § 109(g). Other courts condition refiling without regard to § 109(g) but without addressing the dischargeability of debt. A few courts have imposed both penalties at dismissal of a Chapter 13 case—declaring some or all debts nondischargeable and conditioning refiling.

[4]

The courts have struggled to interpret the words in § 349(a) at dismissal of a Chapter 13 case. Does the introductory phrase, “[u]nless the court, for cause, orders otherwise,” modify the entire section or only the clause before the semicolon? The outcome of this debate determines whether § 349(a) permits a bankruptcy court to condition dismissal with respect to the refiling of a bankruptcy case other than as provided in § 109(g).5 If “[u]nless the court, for cause, orders otherwise” modifies only the first half of the sentence, then at dismissal the bankruptcy court is without discretion to limit refiling except as provided in 11 U.S.C. § 109(g).

[5]

The U.S. Court of Appeals for the Tenth Circuit, in a Chapter 11 case, has held that “§ 349(a) by its plain language, must be read as allowing a bankruptcy court, ‘for cause’ to permanently disqualify a class of debts from discharge, but a bankruptcy court may not deny future access to bankruptcy court, except under the circumstances of § 109(g). Any other reading of § 349(a) is contrary to the language and punctuation used by Congress.”6

[6]

Applying the Tenth Circuit’s view, one district court conditioned dismissal of a Chapter 13 case that the debtors were permanently enjoined from seeking to discharge a $65,000 debt to a creditor.7 Several courts have refused to dismiss even serially filed Chapter 13 cases “with prejudice,” citing the Tenth Circuit’s interpretation of § 349.8 One court suggested that the remedy in a serial filing situation was dismissal of the last case “with a direction that upon such dismissal, the property of the estate shall not revest in the debtor.”9 The court explained:

The effect of such an order upon a further filing would be to avoid the invocation of the automatic stay with regard to any property owned by the Debtor at the time he filed this case. Since the real property subject to the secured creditor’s foreclosure action will remain property of the estate in the dismissed case, it would not meet any of the requirements of § 541(a) to become property of the estate in any subsequent filing, and therefore could not be subject to any future § 362 automatic stay. Furthermore, once the period of ineligibility set forth in § 109(g) has expired, should the Debtor experience a sufficient change in circumstances to warrant a proper, legitimate subsequent filing, the Debtor would not be prevented from doing so.10
[7]

A majority of courts disagree with the Tenth Circuit and hold that the bankruptcy court can condition dismissal of a Chapter 13 case under § 349(a) that the debtor is prohibited to refile bankruptcy under conditions other than those fixed by § 109(g).11 As stated by the U.S. Court of Appeals for the Second Circuit:

[I]n all circuits but the Tenth, [Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991),] bankruptcy courts and district courts invariably derive from § 105(a) or § 349(a) of the Code, or from both sections in some cases, the power to sanction bad-faith serial filers such as the Casses by prohibiting further bankruptcy filings for longer periods of time than the 180 days specified by § 109(g). . . . We take this opportunity to ally ourselves with the Fourth Circuit [Colonial Auto Center v. Tomlin (In re Tomlin), 105 F.3d 933 (4th Cir. 1997),] and the great majority of lower courts which derive from §§ 105(a) and 349(a) of the Code a bankruptcy court’s power, in an appropriate case, to prohibit a serial filer from filing petitions for periods of time exceeding 180 days. . . . “[T]he qualifying phrase in § 349(a) applies both to the clause preceding the semi-colon and the clause following the semi-colon. . . . This reading of § 349(a) means that a debtor may be prejudiced from filing subsequent bankruptcy petitions under two circumstances: (1) if the court, for cause, so orders, or (2) if the terms of § 109(g) apply to the debtors’ case.” . . . We find these constructions preferable to that of the Tenth Circuit in Frieouf, which derives from § 349(a)’s reference to § 109(g) the temporal limitation of 180 days upon the bankruptcy courts’ equitable power to preclude future filings for cause under §§ 105(a) and 349(a). When one considers that Congress intended § 109(g) to give bankruptcy courts an additional weapon for use against serial filers, it is perverse to construe the section as striking from the courts’ hands other sections of the Code which may remedy the same problem.12
[8]

In the Ninth Circuit, § 349 authorizes dismissal of a Chapter 13 case with prejudice to the discharge of debts existing at the petition, and inherent in this authority, the bankruptcy court can prohibit any future bankruptcy filing that seeks to discharge such debt. As stated by the Bankruptcy Appellate Panel for the Ninth Circuit in Leavitt v. Soto (In re Leavitt):13

Section 349 establishes a general rule that dismissal of a case is without prejudice, but it also expressly grants a bankruptcy court the authority to “dismiss the case with prejudice thereby preventing the debtor from obtaining a discharge with regard to the debts existing at the time of the dismissed case, at least for some period of time.” . . . Bad faith, which is generally held to be a cause for dismissal of a case under § 1307, is also cause for dismissal with prejudice under § 349(a). . . . Section 349(a) is not ambiguous, and plainly provides that the bankruptcy court may, at its discretion and for cause, bar the discharge of existing debt. Inherent in this authority is the power to bar subsequent bankruptcy petitions that seek to discharge such debt.14

On further appeal in Leavitt, the U.S. Court of Appeals for the Ninth Circuit gave the following explanation of dismissal with prejudice, including a list of factors for the bankruptcy court to apply when considering a dismissal with prejudice:

The phrase “[u]nless the court, for cause, orders otherwise” in Section 349(a) authorizes the bankruptcy court to dismiss the case with prejudice. . . . A dismissal with prejudice bars further bankruptcy proceedings between the parties and is a complete adjudication of the issues. . . . Although not specifically listed, bad faith is a “cause” for dismissal under § 1307(c). . . . We hold that bad faith is “cause” for a dismissal of a Chapter 13 case with prejudice under § 349(a) and § 1307(c). . . . Bad faith, as cause for the dismissal of a Chapter 13 petition with prejudice, involves the application of the “totality of the circumstances” test. . . . The bankruptcy court should consider the following factors: (1) whether the debtor “misrepresented facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner,” . . . (2) “the debtor’s history of filings and dismissals,” . . . (3) whether “the debtor only intended to defeat state court litigation,” . . . and (4) whether egregious behavior is present . . . . A finding of bad faith does not require fraudulent intent by the debtor.15
[9]

In dicta, in the context of reviewing a good-faith objection to confirmation of a Chapter 13 plan, the U.S. Court of Appeals for the Sixth Circuit observed that a creditor’s request for an injunction prohibiting the debtor from refiling a bankruptcy case exceeds the “powers properly invoked by a bankruptcy court.”16 This observation is consistent with the Tenth Circuit’s view that § 349(a) gives bankruptcy courts discretion to condition dismissal with respect to the discharge of debts in a later case, but the bankruptcy courts are without discretion to condition dismissal with respect to refiling except as provided in § 109(g). But later, in an unpublished decision, the Sixth Circuit affirmed a district court decision rejecting the Tenth Circuit’s view and concluding that the bankruptcy court has authority to dismiss a Chapter 13 case with an 18-month bar to future bankruptcy filings.17

[10]

One bankruptcy court found authority to “order otherwise” than the refiling conditions in § 109(g) by discovering a drafting error in § 349(a):

Courts are divided over whether or not the introductory language “unless the court, for cause, orders otherwise” modifies the entire section or only the clause before the semicolon. An exact application of correct grammar would probably dictate that the introductory language does not modify the second clause regarding the filing of subsequent petitions. However, I read this statute to allow the court to “order otherwise” as to the filing of a subsequent petition. The second clause regarding subsequent petitions was not in the original statute but rather was added in 1984. . . . I take it to be an oversight in draftsmanship that that language was added in such a way that the introductory language about the court order otherwise would not apply to the new language.18
[11]

In addition to § 349(a), many courts cite the general equitable powers of a bankruptcy court under § 105(a) as statutory authority for conditioning a Chapter 13 debtor’s right to refile after dismissal.19 In re Felberman20 is representative of another group of reported decisions that embrace the “more moderate” remedy of conditioning dismissal that the automatic stay will not arise upon a future filing, sometimes only with respect to an identified creditor or property (“in rem”).21 The outcomes here merge: when the order dismissing a Chapter 13 case declares the debtor ineligible to refile for some period of time, it has been held that no automatic stay arises if the debtor files in violation of the prior order.22

[12]

On compelling facts, many reported decisions condition dismissal that the debtor is ineligible to file another bankruptcy petition for months or years or forever: these cases typically involve serially filing debtors with insufficient disposable income to fund a plan, who fail to appear at meetings of creditors or to commence making payments and who seem to have filed Chapter 13 solely to buy time.23 Some of these decisions only bar the debtor from refiling for some period of time; others bar the dischargeability of debts in addition to declaring the debtor ineligible to refile.

[13]

Procedurally, the courts have been lax with respect to dismissal with prejudice. A few courts have rejected the argument that dismissal with prejudice requires the filing of an adversary proceeding.24 Perhaps motion practice is sufficient when the only relief sought at dismissal is a bar to refiling for some period of time. But in a jurisdiction following the Tenth Circuit’s lead, when dismissal with prejudice bars the dischargeability of debts under § 349(a), it can be argued that Part VII of the Bankruptcy Rules applies and an adversary proceeding is required.25 Given that some of the decisions conditioning dismissal that the debtor is barred to refile speak in terms of an injunction under § 105(a),26 it could be argued that most dismissals with prejudice require the filing of an adversary proceeding.27 When the condition requested at dismissal of a Chapter 13 case is a prohibition against refiling by a nondebtor such as the debtor’s spouse or a relative, the courts have been more sensitive to the procedural and due process rights of the nondebtor.28

[14]

Once a bankruptcy court buys into the notion that it is okay to condition dismissal with a bar to refiling, there are no rules with respect to how long a bar is appropriate. Some of the reported decisions impose a 180-day bar similar to § 109(g), but on facts where § 109(g) probably is not applicable.29 Other decisions condition dismissal that the debtor is prohibited to refile for a period substantially longer than the 180 days in § 109(g).30 Some of the reported decisions impose an open-ended bar to refiling.31 Sometimes tempering the bar to refiling, and other times imposing an additional condition, some decisions require the debtor to seek court permission to refile.32 The U.S. Court of Appeals for the Second Circuit reserved the question whether a bankruptcy court can permanently bar refiling as a condition at dismissal.33

[15]

Courts conditioning dismissal that the debtor is ineligible to refile sometimes further condition refiling with respect to geography and persons. The dismissal of the debtor’s eighth bankruptcy case in In re McCoy34 was with prejudice to refiling “anywhere.”35 Some decisions are quite specific with respect to a district or state in which the debtor is forbidden to refile.36 When there is a history of serial or multiple filings by the debtor and family members, the courts have not hesitated to condition dismissal that the debtors and others—related by blood, by marriage or by common ownership of property—are barred to file future bankruptcy cases for some specified time.37

[16]

Some of the reported decisions are very specific with respect to the chapters of the Bankruptcy Code under which the debtor cannot commence a future case.38 Other decisions—typically without discussion—bar refiling under any chapter of the Bankruptcy Code, precluding even liquidation under Chapter 7 for an eligible debtor.39

[17]

Courts have ordered other sanctions against debtors and debtors’ counsel at dismissal of an abusive or bad-faith Chapter 13 case, sometimes citing Bankruptcy Rule 9011 in support of the sanctions.40 In a fascinating commentary on the absence of creditor involvement in Chapter 13 cases, one bankruptcy court dismissed a debtor’s sixth bankruptcy case filed in violation of a dismissal-with-prejudice order entered in the fifth case but declined to impose sanctions because no creditor appeared to present evidence of damages:

According to press reports, creditors complained bitterly to the National Bankruptcy Review Commission that they were being unfairly harassed by repeat filings, particularly repeat filings of Chapter 13 cases. In an attempt to be sensitive to those concerns, this court . . . issued similar notices to show cause . . . creditors were invited to appear and participate. . . . No creditors appeared in any of the cases. Thus, in the five cases in which the court issued a notice to show cause, not one creditor appeared to complain. In more than twelve years as a United States Bankruptcy Judge, this court cannot recall one instance of a creditor objecting to a repeat filing by a debtor. . . . The only conclusion the court can draw is that creditors are not concerned about repeat filings. If creditors are not concerned about repeat filings, should the court be concerned about them? I think not.41
[18]

Occasionally, the sanction imposed when the court finds bad faith or abuse is to deny the debtor’s right to voluntary dismissal of the Chapter 13 case.42 As explained by one court, the “inherent duty to guard against jurisdictional abuse as well as the misuse and manipulation of the bankruptcy process” permits denial of the debtor’s motion to dismiss and supports the use of Bankruptcy Rule 9011 to sanction debtors and debtors’ counsel for seeking voluntary dismissal of a bad-faith Chapter 13 petition.43 Voluntary dismissal has also been denied when the debtor filed simultaneous petitions in more than one district.44

[19]

In contrast, courts have refused to condition dismissal or to dismiss with prejudice when there is no evidence of willful misconduct by the debtor. For example, dismissal with prejudice under § 349(a) was denied when the debtor out of ignorance failed to comply with a local rule requiring a preconfirmation deposit with the Chapter 13 trustee.45 When the parties filed a stipulation for dismissal of a Chapter 13 case without prejudice, it was inappropriate for the bankruptcy court to order dismissal with prejudice to the filing of a bankruptcy case within one year, there being no evidence of cause for dismissal with prejudice under § 349(a).46 On facts out of a creditor’s nightmare, one court declined to condition dismissal or to impose sanctions when “changed circumstances” justified the debtor’s third Chapter 13 case, notwithstanding that the debtor had been sanctioned in prior cases for abusing the bankruptcy system and the debtor had accumulated a postpetition default of more than $20,000.47

[20]

Conditions imposed at dismissal are tested when the debtor violates a condition, typically by filing a subsequent bankruptcy case. It has been held that a bankruptcy court cannot “retroactively” reduce or modify the conditions imposed at dismissal of a prior Chapter 13 case.48 On the other hand, several reported decisions indicate that courts will not always enforce conditions on dismissal in orders and agreements that purport to restrict the debtor’s right to refile bankruptcy or to invoke a new automatic stay.49

[21]

For example, in In re Madison,50 by agreement among counsel at the dismissal of debtor’s fourth bankruptcy case, if a fifth case was filed and the fifth case failed, the debtor would be precluded from filing a sixth case for 180 days. The agreement was not memorialized in a court order, but there was no dispute that the parties intended to be bound. The debtor filed a fifth bankruptcy case that was dismissed and then filed a sixth bankruptcy case in violation of the 180-day prohibition. The bankruptcy court held that the agreement was not enforceable because it violated public policy:

[A]n agreement not to file bankruptcy is unenforceable because it violates public policy. . . . Enforcement of even an agreement which only temporarily waives such rights would appear sufficient to us to undermine the Congressionally-expressed public policy underpinning the Bankruptcy Code. . . . Therefore, a stipulation by which a potential debtor would agree not to file a bankruptcy case for even a finite period of time, such as 180 days, is not binding. . . . The fact that the Movant agreed to forego [sic] its right to be heard on its motion raised in the Debtor’s fourth case in consideration for the Debtor’s promise that the fifth case would be her last filing is similarly of no consequence. Even bargained-for and knowing waivers of the right to seek protection in bankruptcy must be deemed void.51
[22]

Similarly, in Norwest Financial Tennessee, Inc. v. Coggins (In re Coggins),52 the order dismissing the debtor’s fourth bankruptcy case was “with prejudice as to any refiling against Norwest.” The debtor filed a fifth case, and Norwest argued that no stay arose. The bankruptcy court found that the fifth petition did impose an automatic stay because “the debtor is entitled to a judicial determination of whether the debtor had a sufficient change in circumstances to justify a refiling notwithstanding an order’s entry in a prior case.”53 The same court reached a similar conclusion in Brengettcy v. National Mortgage Co. (In re Brengettcy),54 in the context of a “drop dead” order that prohibited the debtor from refiling to stop a mortgage foreclosure if the prior case was dismissed.

[23]

Some of the cases discussed above in which bankruptcy courts have imposed conditions on dismissal involve the interaction between §§ 349 and 1307 at involuntary dismissal of a Chapter 13 case under § 1307(c).55 Should the courts be more or less receptive to conditions when the dismissal is voluntary under § 1307(b)? There is no obvious difference in analysis in the reported cases.

[24]

It might be argued that the absolute language in § 1307(b) and the prohibition against any waiver of the right of voluntary dismissal should inspire the courts to be more sparing in the use of conditions at voluntary dismissal. As the cost of a voluntary dismissal goes up—as the conditions become more and more onerous to the debtor—the conditions threaten the right in § 1307(b) in derogation of congressional intent that consumer debtors be permitted to try and fail at a Chapter 13 case. Madison, Coggins and Brengettcy warn that conditions at dismissal of a prior bankruptcy case will be strictly construed if the conditions impair the debtor’s access to bankruptcy.

[25]

Section 109(g) is a specific, comprehensive statement by Congress of circumstances under which an individual debtor can refile bankruptcy after dismissal of a prior case.56 Congress enacted § 109(g) [at the time, § 109(f)] in 1984, simultaneously amending § 349(a) to cross-reference § 109(g). The legislative history to the 1984 enactment reveals that the purpose of § 109(g) was “to provide the court with greater authority to control abusive multiple filings.”57 Congress has spoken to the eligibility of individual debtors to refile bankruptcy cases. Section 349(a) is properly interpreted to preclude conditions on refiling other than the conditions fixed by Congress in § 109(g).


 

1  See § 330.1 [ Absolute Right of Debtor? ] § 151.2  Absolute Right of Debtor?.

 

2  See § 20.1 [ Court-Imposed Restrictions on Eligibility to Refile ] § 24.1  Court-Imposed Restrictions on Eligibility to Refile.

 

3  See § 64.3  Prospective, In Rem and Automatic Relief from StaySee also discussion beginning at § 59.1  In General.

 

4  11 U.S.C. § 349(a) (emphasis added).

 

5  11 U.S.C. § 109(g) is discussed in § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General§ 25.2  11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution and § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay.

 

6  Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1103 (10th Cir. 1991).

 

7  Cooper v. Kramer (In re Cooper), 139 B.R. 736 (D. Colo. 1992) (after remand). Accord In re Chadwick, 296 B.R. 876, 882 (Bankr. S.D. Ga. 2003) (Arguably in dicta, at dismissal for lack of good faith, bankruptcy court declares that ex-spouse’s interest in proceeds from the prepetition sale of the debtor’s business are “not subject to discharge in this or any subsequent federal bankruptcy.”).

 

8  See In re Jones, 192 B.R. 289, 290–93 (Bankr. M.D. Ga. 1996) (Bankruptcy court is without authority to dismiss debtor’s third bankruptcy case with prejudice. Optometrist filed three bankruptcy cases between 1992 and August of 1995—two Chapter 13 cases and a Chapter 11 case—all “were unsuccessful efforts to deal with the obligations that the debtor owes to the IRS.” IRS moved to dismiss third filing with prejudice. Citing Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991), cert. denied, 502 U.S. 1091, 112 S. Ct. 1161, 117 L. Ed. 2d 408 (1992), “[s]ection 349(a) does not permit a bankruptcy court, for cause, to dismiss a bankruptcy case with prejudice.” Failure to make payments consistent with a consent order does not trigger § 109(g)(1) because “Debtor was unable to make all of the payments because his business was slow during the Christmas season. Debtor simply did not have the ability to make all of his payments. The Court is not persuaded that this was a ‘willful failure of the debtor to abide by orders of the court.’”); In re Merrill, 192 B.R. 245, 251, 252 (Bankr. D. Colo. 1995) (Citing Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991), neither § 105, § 349, nor Bankruptcy Rule 9011 authorizes a bankruptcy court to dismiss a Chapter 13 case with prejudice to refiling. Debtor filed seven bankruptcy cases in eight years, all dismissed for failure to make payments. There was no evidence of any substantial change in circumstances. A bankruptcy court “may deny a debtor future discharge of debts, but may not limit the filing of a subsequent petition except as provided in § 109(g). . . . Because a debtor’s creditors may change from time-to-time, a bar to future filings prevents a debtor from restructuring or discharging debts not affected by bad faith in prior cases. . . . An injunction against refiling presumes future bad faith without any factual finding.” Bankruptcy Rule 9011 does not provide a vehicle for barring future filings because “Rule 9011 permits an award of sanctions only against a person who signs a specified pleading in violation of the Rule. . . . [The creditor] has not identified the nonconforming portion of any pleading filed in this case.”).

 

9  In re Prud’Homme, 161 B.R. 747, 751 (Bankr. E.D.N.Y. 1993).

 

10  161 B.R. at 751.

 

11  See also § 23.1  Eligibility of a Serial Filer: “Chapter 20” and Beyond§ 23.2  Eligibility of Repeat Filers after BAPCPA and § 24.1  Court-Imposed Restrictions on Eligibility to Refile.

 

12  Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 337–40 (2d Cir. 1999). Accord Javens v. Ruskin, No. 99-74189, 2000 WL 1279189, at *2 (E.D. Mich. Aug. 24, 2000) (“As the Second Circuit Court of Appeals has recognized, the Tenth Circuit’s construction [in Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991),] of the statute is the minority view. In re Casse, 198 F.3d 327, 336 (2d Cir. 1999). In Casse, the Second Circuit expressly declined to follow Frieouf. . . . This Court declines to follow Frieouf, and in keeping with the majority of the circuits and the case law, concludes that the Bankruptcy Court had the authority to bar future filings in excess of 180 days.”), aff’d, 2001 WL 1450676 (6th Cir. Nov. 9, 2001) (unpublished).

 

13  209 B.R. 935 (B.A.P. 9th Cir. 1997), aff’d, 171 F.3d 1219 (9th Cir. 1999).

 

14  209 B.R. at 939–43.

 

15  171 F.3d at 1223–24. Accord In re Covino, 245 B.R. 162, 169–70 (Bankr. D. Idaho 2000) (Applying Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir. 1999), cause for dismissal with prejudice that debtors filed Chapter 13 after revocation of discharge in pending Chapter 7 case to avoid judgment for Chapter 7 trustee recovering assets the debtors concealed. “Debtors’ second bankruptcy filing stands as a conspicuous attempt to unfairly manipulate the Bankruptcy Code in their favor. . . . Debtors engaged in conduct justifying revocation of their Chapter 7 bankruptcy discharge. Debtors concealed important facts about their financial affairs from the Chapter 7 trustee . . . . Their proposed Chapter 13 plan makes no effort to remedy their wrongs. Creditors will only receive token monthly payments over the minimum term allowed by law. Debtors intend to discharge [the Chapter 7 trustee’s] money judgment, along with all of the other debts the Court has declared should not be discharged. . . . Debtors’ conduct in connection with their Chapter 7 case was indeed egregious. . . . Debtors’ Chapter 13 case will be dismissed with prejudice.”). See also Umali v. Dhanani (In re Umali), 345 F.3d 818, 821–22 (9th Cir. 2003) (Debtor was ineligible to file Chapter 13 in Arizona because of condition at dismissal of prior Chapter 13 case in California that the debtor was ineligible to refile for 180 days, notwithstanding that California court later removed the bar to refiling; because the debtor was ineligible, no automatic stay was triggered when the Arizona case was filed in violation of the California dismissal order. “The dismissal order . . . contained ‘a one-hundred eighty day prohibition against the refiling of another by [Umali] under any chapter.’ Umali did not object to the order . . . . Rather, after the bankruptcy court entered the order, Umali filed a motion to reconsider the 180-day filing prohibition. The motion for reconsideration was granted . . . and the order dismissing the Second Petition was amended to remove the 180-day prohibition. . . . Prior to the California bankruptcy court entering its modified order, . . . Debtor filed, pro se, a third Chapter Thirteen bankruptcy petition in the District of Arizona . . . . Umali filed his petition in violation of a court order that was in effect at the time. Further, the California court’s subsequent modification of its order removing the 180 day bar could not operate in nunc pro tunc fashion.”).

 

16  Society Nat’l Bank v. Barrett (In re Barrett), 964 F.2d 588, 591 (6th Cir. 1992). But see In re Barrett, 149 B.R. 494, 501 (Bankr. N.D. Ohio 1993) (On remand, “I believe that the Court does have the power and authority to prohibit multiple filings where they appear abusive.”).

 

17  Javens v. Ruskin, No. 99-74189, 2000 WL 1279189, at *2 (E.D. Mich. Aug. 24, 2000) (Bankruptcy court has authority and did not abuse its discretion in dismissing Chapter 13 case with an 18-month bar to future filings. “As the Second Circuit Court of Appeals has recognized, the Tenth Circuit’s construction [in Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991),] of the statute is the minority view. Casse v. Key Bank National Ass’n (In re Casse), 198 F.3d 327, 336 (2d Cir. 1999). In Casse, the Second Circuit expressly declined to follow Frieouf. . . . This Court declines to follow Frieouf, and in keeping with the majority of the circuits and the case law, concludes that the Bankruptcy Court had the authority to bar future filings in excess of 180 days. . . . Debtor engaged in the following inappropriate conduct: . . . serial filings and subsequent dismissal for failure to properly file bankruptcy pleadings . . . abuse of the bankruptcy system and lack of good faith . . . actions causing prejudice to creditors . . . manipulation of the process to avoid payment to creditors . . . meticulously timed filings in order to prevent the payment of county taxes. . . . [T]he Court did not abuse its discretion by ordering an eighteen month bar to future filings.”), aff’d, No. 00-2374, 2001 WL 1450676 (6th Cir. Nov. 9, 2001) (unpublished). See also In re McCoy, 237 B.R. 419, 422–23 (Bankr. S.D. Ohio 1999) (Debtor’s eighth bankruptcy case is dismissed with prejudice to refiling anywhere, at any time, and all scheduled debts are permanently excepted from discharge; debtor is ordered to pay $1,000 pursuant to Bankruptcy Rule 9011. “The Debtor has filed eight pro se chapters 7 and 13 petitions over an eight-year period . . . failed to file the requisite schedules, statements of affairs and plan, and has failed to attend creditors’ meetings. The Debtor has filed subsequent bankruptcy cases in violation of orders precluding filings . . . . The Debtor has failed to accurately disclose his prior bankruptcy filings, and has used different names and social security numbers. . . . [H]e has not been deterred from his abusive filing where this Court has repeatedly restricted the ability to file another case. The Court is convinced, absent extraordinary measures, that the Debtor will continue to compromise the bankruptcy process.”).

 

18  In re Belden, 144 B.R. 1010, 1022 (Bankr. D. Minn. 1992).

 

19  See In re Meints, 222 B.R. 870, 871–72 (D. Neb. 1998) (Sua sponte dismissal without a hearing was appropriate based on unfulfilled conditions in order that dismissed prior bankruptcy case. In bankruptcy court’s 1993 dismissal order of the debtor’s prior bankruptcy, the court barred the debtor from filing another bankruptcy case “after 180 days . . . unless Meints ‘(i) pays the filing fee for the new case in cash or certified funds; (ii) files an affidavit demonstrating that he has paid the costs and expenses awarded to Gage County in connection with this bankruptcy case; and (iii) files fully completed bankruptcy schedules and statements of financial affairs.’” Debtor filed another Chapter 13 case in 1997 without complying with the conditions specified in the 1993 order. Distinguishing Tenney v. Terry (In re Terry), 630 F.2d 634 (8th Cir. 1980), district court found authority for bankruptcy court’s sua sponte dismissal without a hearing in § 105 as necessary “to prevent an abuse of the bankruptcy process.” The court noted that “sua sponte dismissal is not permissible when the dismissal is based on a determination of the merits of a Chapter 13 plan.”); Stathatos v. United States Trustee (In re Stathatos), 163 B.R. 83 (N.D. Tex. 1993) (Bankruptcy court acted within its discretion to prevent abuse of the bankruptcy process under § 105(a) and within its authority under Bankruptcy Rule 9011 by dismissing pro se debtors’ third petition with prejudice to the refiling of a bankruptcy case for 24 months and by ordering the debtors to pay $500 to the bankruptcy clerk as a sanction.); In re Roeben, 294 B.R. 840, 845–46 (Bankr. E.D. Ark. 2003) (Citing § 105(a), sixth bankruptcy case in six years filed by the debtor or the debtor’s nonfiling spouse is dismissed with three-year prohibition against refiling. “[T]he Court finds it necessary to employ its equitable powers under 11 U.S.C. § 105(a) to bar Debtor from filing for bankruptcy for three years, unless Debtor first seeks and receives Court approval.”); In re Jones, 289 B.R. 436, 440–41 (Bankr. M.D. Ala. 2003) (Fifth bankruptcy case in five years is dismissed with prejudice and with a bar to refiling for five years. “The Court takes this opportunity to join with a majority of other courts ‘which derive from §§ 105(a) and 349(a) of the Code a bankruptcy court’s power, in an appropriate case, to prohibit a serial filer from filing petitions for periods of time exceeding 180 days . . . [and] concluding that § 109(g) does not impose a temporal limitation upon these other sections.’”); In re Glenn, 288 B.R. 516 (Bankr. E.D. Tenn. 2002) (Dismissal with bar to refiling for 180 days under § 105(a) when debtor filed three Chapter 13 cases on the eve of foreclosure sales, did not appear at meetings of creditors and failed to make payments.); In re Rusher, 283 B.R. 544, 549 (Bankr. W.D. Mo. 2002) (Third Chapter 13 case in three years is dismissed with injunction to refiling for three years. “Since serial filings can be an abuse of the bankruptcy process, and the abuse, as here, cannot always be prevented by the injunction found in section 109(g), the majority of courts have held that Section 105(a) and 349(a) can be used conjunctively to enjoin a serial filer from filing yet another bankruptcy petition for a period of time in excess of 180 days.”); In re Bertelt, 250 B.R. 739, 748 (Bankr. M.D. Fla. 2000) (Tax protestor’s third bankruptcy case is dismissed with prejudice to refiling for 180 days. “The authority for such a dismissal arises under § 105(a).”); In re Robertson, 206 B.R. 826, 830–31 (Bankr. E.D. Va. 1996) (Grants motion to dismiss third Chapter 13 case with prejudice to refiling for 417 days. “When granting a dismissal with prejudice, the Court must rely on § 105(a), § 109(g) and § 349(a) . . . . There is a disagreement among the Circuits over whether a bankruptcy court can dismiss with prejudice under § 105 for cause other than those listed in § 109(g) while not violating § 349. Yet, to this Court it is clear that a bankruptcy court is within its equitable powers in dismissing a case with prejudice ‘for cause, or otherwise’ in accordance with § 349(a).”); In re Koval, 205 B.R. 72, 76 (Bankr. N.D. Tex. 1996) (Chapter 13 case is “dismissed with an injunction under 11 U.S.C. § 105(a) enjoining Debtors from filing a bankruptcy anywhere in the United States for two years.” Cause for dismissal that debtors failed to file postpetition federal tax returns and failed to pay postpetition taxes.); In re Spear, 203 B.R. 349, 353 (Bankr. D. Mass. 1996) (Bankruptcy court has authority under § 105(a) to dismiss Chapter 13 case with prejudice to refiling for 180 days based on debtor’s filing of three serial Chapter 13 petitions without statements and schedules and debtor’s concession that she intentionally filed the three petitions to stay foreclosure with the intent to dismiss when necessary. “The bankruptcy court’s authority to dismiss a case with prejudice also arises under § 105(a).”); In re Armwood, 175 B.R. 779 (Bankr. N.D. Ga. 1994) (Citing 11 U.S.C. § 105, fifth Chapter 13 case filed for the sole purpose of frustrating foreclosure by car lender was dismissed with prejudice to the filing of any bankruptcy case for a period of 180 days. $500 sanction was imposed on the debtor and on debtor’s attorney under Bankruptcy Rule 9011.); In re Earl, 140 B.R. 728, 741 (Bankr. N.D. Ind. 1992) (Disagreeing with Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991), bankruptcy court has equitable power under § 105 to enjoin future filings to prevent abuse of the bankruptcy process. A dismissal with prejudice under § 349(a) does not affect a debtor’s eligibility to file a subsequent bankruptcy case; it simply denies the debtor a discharge of debts in future cases. “Because 11 U.S.C. § 109(g) is not applicable, the court will rely on its equitable powers under 11 U.S.C. § 105 . . . and enjoin the debtor from filing another Chapter 13 case for the next six months.”).

 

20  196 B.R. 678 (Bankr. S.D.N.Y. 1995).

 

21  196 B.R. at 682–84 (Husband filed three Chapter 13 cases between 1993 and 1995, all on the eve of foreclosure sales and all dismissed for failure to make payments or to file plans. During third case, order granting relief from the stay was entered that included “any future filing by the debtor, or any other person or entity with an interest in the subject property, [shall] not operate as an automatic stay against Movant except upon separate order of this court.” After dismissal of husband’s third case, wife filed a separate (fourth) Chapter 13 case the day before scheduled foreclosure sale. “[S]ection 349(a) allows the bankruptcy court the alternative of conditioning the dismissal of a case with limitations on subsequent petitions where cause exists. . . . While many courts have sustained the validity of orders barring the debtor and/or non-debtor co-obligor/owner from future filings, some cases have found that such orders are improper. See [Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. 1991)] . . . . The Frieouf opinion has received much criticism, focusing on the court’s interpretation of the second part of section 349(a) to mean that courts are constrained in limiting petitioners’ rights to re-file. . . . Most courts have rejected this reasoning, concluding that, so long as the dismissing court finds ‘cause,’ a bankruptcy action may be dismissed with prejudice to the re-filing of a subsequent petition without violating the terms of section 349(a) or section 109(g). . . . Judge Connelly’s October 17, 1994 order did not raise a Frieouf issue because it did not limit either Felberman’s access to the bankruptcy court. It simply provided that any future filing by Aaron Felberman or his wife would not result in an automatic stay as to this specific creditor absent separate order of this Court. . . . It is true that this Debtor was not a party to her husband’s third bankruptcy case. But she had sufficient notice of the foreclosure sale . . . . [S]he could have made an appropriate motion challenging the validity of Judge Connelly’s order . . . . [T]he Debtor was not deprived of her due process right to seek timely legal redress . . . she simply chose not to exercise her due process rights. . . . The Felbermans have engaged in a . . . pattern of conduct to prevent FNB from foreclosing on their home. Their long history of non-payment and serial filings simply underscores their unity of interest and purpose and fully justifies Judge Connelly’s October 17 order.”). Accord In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496, at *6–*7 (E.D. Pa. Aug. 18, 2000) (In third Chapter 13 case by debtor or debtor’s husband filed to stop foreclosure sale, district court modifies bankruptcy court order granting relief from the stay to provide that any automatic stay arising as a result of a future bankruptcy filing by the debtor shall not apply to the mortgage holder. “Section 349(a) of the Bankruptcy Code provides that a case may be dismissed with prejudice where cause exists. . . . Together, therefore, §§ 105(a) and 349(a) enable the bankruptcy court to restrict a debtor’s ability to file subsequent petitions. . . . If prohibiting future filings may be deemed ‘necessary or appropriate to carry out the provisions of [the Bankruptcy Code],’ so must the more moderate remedy of granting prospective relief from the automatic stay.”); In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003) (In sixth bankruptcy case in six years filed by the debtor or the debtor’s nonfiling spouse, bankruptcy court grants in rem stay relief with respect to the debtor’s real property.); In re Privitera, No. 03-1460DWS, 2003 WL 21460027 (Bankr. E.D. Pa. June 12, 2003) (unpublished) (Eighth bankruptcy filing is dismissed with bar to refiling without court permission and conditioned that debtor agree that any new filing will not stay litigation in district court.); In re Barr, 263 B.R. 496, 499 (Bankr. E.D. Pa. 2001) (Debtor’s sixth bankruptcy case filed “for the exclusive purpose of delaying or preventing the debtor’s only creditor, GE Capital, from exercising its mortgage rights under state law” is dismissed with the condition that “[n]o subsequent bankruptcy filing by the Debtor shall stay the pursuit by GE Capital Mortgage Services, Inc. of its remedies under applicable law as such remedies relate to [the debtor’s residence].” With respect to order dismissing prior bankruptcy case, “[i]f the purpose of that dismissal ‘with prejudice’ was to preclude forever any refiling, I will not enforce it under these circumstances. If ‘with prejudice’ was supposed to preclude a subsequent filing for 180 days, the language of the Order does not effect this.”); In re Falotico, 231 B.R. 35 (Bankr. D.N.J. 1999) (Cause for dismissal with condition that no automatic stay will arise upon any future filing when debtor filed three Chapter 13 cases to stop a foreclosure, debtor failed to pay taxes and failed to make repairs, resulting in no value to secure mortgage holder, debtor negotiated in bad faith and plan would pay next to nothing.); In re Martin, 215 B.R. 119 (Bankr. N.D. Tex. 1997) (Third Chapter 13 case filed by the debtor to stop a mortgage foreclosure is dismissed with prejudice to refiling by the debtor or by any relative or girlfriend or related entity of the debtor for a period of 180 days, and “in rem” relief from the stay is granted with respect to the debtor’s real property.); In re Greenberg, 200 B.R. 763, 768–70 (Bankr. S.D.N.Y. 1996) (Second Chapter 13 case filed to stop state court litigation is dismissed with prejudice: future bankruptcy filing will not invoke automatic stay with respect to the Co-op except on application from the debtor or the debtor’s trustee. “[W]here the debtor abuses the bankruptcy process by filing a petition to obtain the benefit of the automatic stay, the court may dismiss the case and limit the effect of the automatic stay in any future case . . . . [P]ursuant to 11 U.S.C. § 349(a), the dismissal order shall provide that if the debtor files another bankruptcy case, the automatic stay will not apply to the current litigation between the debtor and the Co-op or to the Co-op’s right to foreclose its security interest, or evict the debtor, if the state court permits it to do so. The debtor or her trustee may seek to reimpose the stay upon appropriate notice to the Co-op.”). See also § 82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay.

 

22  See § 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse? for discussion of the consequences of ineligibility. See, e.g., Umali v. Dhanani (In re Umali), 345 F.3d 818 (9th Cir. 2003) (Filing of Chapter 13 case in Arizona in violation of California bankruptcy court order that the debtor was not eligible to file for 180 days did not trigger the automatic stay.).

 

23  See App. O. See, e.g., Tolbert v. Fink (In re Tolbert), 255 B.R. 214, 216–17 (B.A.P. 8th Cir. 2000) (Bankruptcy court did not abuse discretion in dismissing Chapter 13 case with prohibition against refiling for 180 days when “this was the sixth bankruptcy filed by the Debtor since March 19, 1997, . . . each of the Debtor’s prior cases was dismissed for failure to file schedules and a plan, and . . . the Debtor filed neither schedules nor a plan in the pending Case. . . . [T]he bankruptcy court dismissed the chapter 13 case with prejudice to the refiling for 180 days. The order of dismissal was entered on April 11, 2000, and thus, on Sunday, October 8, 2000, the prohibition against filing a new bankruptcy case expired. Thus, it does not appear that there is anything for this Court to decide with regard to the bankruptcy court’s injunction against the Debtor.”), aff’d, No. 01-1077, 2001 WL 817401 (8th Cir. July 20, 2001) (unpublished); In re Dulisse, No. CIV.A. 01-1385, 2001 WL 769994, at *2 (E.D. Pa. July 5, 2001) (Bankruptcy court appropriately dismissed debtor’s third Chapter 13 petition filed solely to stop a foreclosure sale and prohibited the filing of another bankruptcy petition for 180 days. “This type of prospective relief is usually granted when a serial refiler’s abuse of the bankruptcy process damages a single secured creditor. Under the facts of this case, the Bankruptcy Court’s grant of prospective relief was warranted.”); Javens v. Ruskin, No. 99-74189, 2000 WL 1279189, at *2 (E.D. Mich. Aug. 24, 2000) (Bankruptcy court has authority and did not abuse its discretion in dismissing Chapter 13 case with an 18-month bar to future filings. “Debtor engaged in the following inappropriate conduct: . . . serial filings and subsequent dismissal for failure to properly file bankruptcy pleadings . . . abuse of the bankruptcy system and lack of good faith . . . actions causing prejudice to creditors . . . manipulation of the process to avoid payment to creditors . . . meticulously timed filings in order to prevent the payment of county taxes. . . . [T]he Court did not abuse its discretion by ordering an eighteen month bar to future filings.”), aff’d, 2001 WL 1450676 (6th Cir. Nov. 9, 2001) (unpublished); In re Meints, 222 B.R. 870, 871–72 (D. Neb. 1998) (Sua sponte dismissal without a hearing was appropriate based on unfulfilled conditions in order that dismissed prior bankruptcy case. In bankruptcy court’s 1993 dismissal order of the debtor’s prior bankruptcy, the court barred the debtor from filing another bankruptcy case “after 180 days . . . unless Meints ‘(i) pays the filing fee for the new case in cash or certified funds; (ii) files an affidavit demonstrating that he has paid the costs and expenses awarded to Gage County in connection with this bankruptcy case; and (iii) files fully completed bankruptcy schedules and statements of financial affairs.’” Debtor filed another Chapter 13 case in 1997 without complying with the conditions specified in the 1993 order. Distinguishing Tenney v. Terry (In re Terry), 630 F.2d 634 (8th Cir. 1980), district court found authority for bankruptcy court’s sua sponte dismissal without a hearing in § 105 as necessary “to prevent an abuse of the bankruptcy process.” The court noted that “sua sponte dismissal is not permissible when the dismissal is based on a determination of the merits of a Chapter 13 plan.”); In re Ortiz, 200 B.R. 485, 489–90 (D.P.R. 1996) (Affirms dismissal with prejudice to refiling for one year of debtors’ third Chapter 13 case filed within a five-year period to stop execution on a judgment. Case was essentially a two-party dispute. “[T]he filing of successive or serial Chapter 13 petitions does not constitute lack of good faith per se, it may be evidence of the lack of good faith. . . . The result achieved by debtors’ successive filings has been to forestall for five years the execution of the judgment entered against them. The forestalling has been due in part on [sic] debtors’ continuous hiring and discharging of lawyers and their abusive filing of pro se motions.”); Jeffries v. G.E. Capital Mortgage Servs., Inc. (In re Jeffries), No. 94 C 2781, 1995 WL 12288 (N.D. Ill. Jan. 11, 1995) (Court affirms dismissal of seventh bankruptcy case (eighth if you count debtor’s wife’s case) dismissed with prejudice to refiling for 180 days and with monetary sanctions for the filing of a frivolous bankruptcy case. Applying the “totality-of-the-circumstances” test for bad-faith filing under § 1307, history of seven filings over a four-year period was “fundamentally unfair” to the mortgage company that was repeatedly delayed in its foreclosure sale. Two of the prior petitions were filed in violation of the 180-day bar in § 109(g), and the debtor failed to list the seven previous petitions in the eighth filing.); Stathatos v. United States Trustee (In re Stathatos), 163 B.R. 83 (N.D. Tex. 1993) (Bankruptcy court acted within its discretion to prevent abuse of the bankruptcy process under § 105(a) and within its authority under Bankruptcy Rule 9011 by dismissing pro se debtors’ third petition with prejudice to the refiling of a bankruptcy case for 24 months and by ordering the debtors to pay $500 to the bankruptcy clerk as a sanction. The debtors’ 1989 case was dismissed in 1990. Twenty-four days after dismissal, the debtors filed a second case that was also dismissed. The third case was filed four days after dismissal of the second. The bankruptcy petitions were “obviously filed to hinder eviction proceedings.” The debtors made no effort to comply with the plans in the dismissed cases. Debtors also incurred credit during the pending prior cases.); In re Lesane, 301 B.R. 625, 626 (Bankr. M.D. Ga. 2003) (Sixth pro se Chapter 13 case filed without filing fees or schedules is dismissed with condition that the debtor is “enjoined for a period of thirty-six (36) months from filing any bankruptcy case under any chapter in this Court.”); In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003) (Sixth bankruptcy case in six years filed by the debtor or the debtor’s nonfiling spouse is dismissed with three-year prohibition on refiling. “[T]he purpose behind the instant filing is . . . to frustrate EMC’s efforts to foreclose . . . . This constitutes an abuse of the bankruptcy process. . . . [T]his case has been filed in bad faith and should be dismissed with prejudice.”); In re Fleury, 294 B.R. 1, 8–9 (Bankr. D. Mass. 2003) (Second Chapter 13 petition filed solely to defeat former spouse’s rights under divorce decree is dismissed with prejudice to refiling for 360 days. “The dismissal of bankruptcy cases with and without prejudice is authorized by 11 U.S.C. § 349(a). . . . A dismissal with prejudice bars further bankruptcy proceedings between the parties and is a complete adjudication of the issues. . . . A finding of bad faith based on egregious behavior under 11 U.S.C. § 1307(c) will satisfy ‘cause’ under § 349 and can justify dismissal with prejudice. . . . [D]ismissal with prejudice bars re-filing for a limited period of time. . . . Because of the Debtor’s single-minded intent to avoid payment to the Creditor, I find that a 360 day bar to refiling is justified to prevent the Debtor from making another attempt at delaying or defeating the Creditor’s claim to the Judgment.”); In re Privitera, No. 03-1460DWS, 2003 WL 21460027 (Bankr. E.D. Pa. June 12, 2003) (unpublished) (Eighth bankruptcy filing is dismissed with bar to refiling without court permission and conditioned that debtor agree that any new filing will not stay litigation in district court.); In re Torvik, 293 B.R. 795, 798 (Bankr. M.D. Fla. 2003) (Second case is dismissed for bad faith with condition that debtor “shall not be permitted to re-file within 180 days of the entry of this Order” when debtor used $1,500 refund from first case to pay attorney fees for second case.); In re Jones, 289 B.R. 436, 440–41 (Bankr. M.D. Ala. 2003) (Fifth bankruptcy case in five years is dismissed with prejudice and with a bar to refiling for five years. “Because the Court finds that the Debtor filed the instant case in bad faith and with the sole intent of delaying her creditors, the dismissal is with prejudice pursuant to 11 U.S.C. § 349(a). . . . [I]n the event that the Debtor files a bankruptcy case in the future, the debts presently owed are nondischargeable pursuant to this order of dismissal. Because of the Debtor’s pattern of conduct, repeated instances of bad faith and lack of meaningful participation in the prosecution of any of her five cases, the Court has determined that further measures are required to protect creditors . . . . [T]he Debtor is enjoined from filing a bankruptcy petition anywhere in the United States for a period of five years from the date of this order.”); In re Green, No. 5:02-BK-18966E, 2002 WL 32114474 (Bankr. E.D. Ark. Oct. 30, 2002) (unpublished) (Sixth bankruptcy case in less than three years is dismissed with condition that the debtor is prohibited from filing any bankruptcy cases in the Eastern or Western Districts of Arkansas for 180 days.); In re Glenn, 288 B.R. 516, 521 (Bankr. E.D. Tenn. 2002) (Dismissal with bar to refiling for 180 days under § 105(a) when debtor filed three Chapter 13 cases on the eve of foreclosure sales, did not appear at meetings of creditors and failed to make payments. “The Debtor has abused the bankruptcy process, using it to hold Centex hostage, while remaining in his residence without paying for it.”); In re Pettey, 288 B.R. 14, 23–24 (Bankr. D. Mass. 2003) (Ineligible debtor’s Chapter 13 petition dismissed with bar to refiling for three years, and certain debts are declared nondischargeable. Debtor failed to schedule large debt to former spouse and listed wrong address for a claim exceeding $500,000 based on a judgment for sexual assault and battery. Bankruptcy court dismissed “with prejudice to the later discharge in bankruptcy of the Debtor’s existing obligations” to the sexual assault creditors and the former spouse, citing § 349(a). Court also barred the debtor from any further bankruptcy filing under any chapter of the Bankruptcy Code “for a period of three years from the date of this order.”); In re Lami, No. 02-36595DWS, 2003 WL 262484 (Bankr. E.D. Pa. Jan. 2, 2003) (unpublished) (Ninth Chapter 13 filing during period when debtor was barred from filing bankruptcy is dismissed with bar to refiling for 180 days without leave of court.); In re Duruji, 287 B.R. 710, 714 (Bankr. S.D. Ohio 2003) (Third Chapter 13 case in eight months is dismissed with condition that the debtor is “precluded from filing another bankruptcy case under any chapter and anywhere for a period of 180 days from entry of this Order” based on §§ 109(g)(1) and 349(a).); In re LeGree, 285 B.R. 615, 619, 621 (Bankr. E.D. Pa. 2002) (After 10 or 11 filings between 1983 and 2001, “none of which were completed, and all of which were dismissed for reasons that tend to show that the Debtor made no realistic effort to reorganize,” debtor is “precluded from refiling for a period of one year and, thereafter, only with the Court’s permission.”); In re Rusher, 283 B.R. 544, 549 (Bankr. W.D. Mo. 2002) (Third Chapter 13 case in three years is dismissed with injunction to refiling for three years. “Ms. Rusher has avoided paying any of her obligations since October 27, 1999, a period just short of three years. She has used the protections of the Code to retain all of her assets, without making plan payments or confirming a plan. She has submitted at least six NSF checks to the Chapter 13 trustee, and has consistently ignored his request that she not make payments by personal check. . . . Ms. Rusher has delayed her creditors in the collection of their debts by these three serial filings. I, therefore, enjoin her from filing another bankruptcy case for the same period of time that she has abused the system to prejudice her creditors. . . . [A]s of today, her creditors have been delayed for a total of 1068 days . . . . She is, therefore, enjoined from filing another case for three years.”); In re Norley, No. 01-37689DWS, 2002 WL 1752280, at *3 (Bankr. E.D. Pa. June 24, 2002) (unpublished) (Fifth bankruptcy case by debtor and/or debtor’s nonfiling spouse is dismissed with injunction prohibiting either from refiling for 180 days without court permission. “[A] bar against future filings for 180 days without leave of court . . . [is] warranted because this case was the fifth bankruptcy case filed by Mary and/or Michael without the achievement of any legitimate bankruptcy purpose.”); In re Williams, No. 02-31639, 2002 WL 1477634, at *1 (Bankr. W.D.N.C. May 31, 2002) (unpublished) (Fourth Chapter 13 case within two years is dismissed sua sponte and the debtor is enjoined “for a period of one year from filing a petition for relief in any United States Bankruptcy Court.”); In re Dent, 275 B.R. 625 (Bankr. M.D. Ala. 2002) (Second Chapter 13 case dismissed with prejudice to refiling for 180 days and debtor’s attorney sanctioned for $500 under Bankruptcy Rule 9011 when second petition was filed less than two months after dismissal of prior Chapter 13 case, debtor failed to commence making payments in both cases, second petition failed to reveal prior case and statement of financial affairs in second case failed to reveal prepetition repossession that debtor’s attorney claimed caused the hasty second filing.); In re Shaheen, 268 B.R. 455, 462 (Bankr. E.D. Va. 2001) (Third bankruptcy case filed solely to defeat collection of assault judgment declared nondischargeable in prior Chapter 7 case is dismissed with prejudice to refiling under any chapter for one year. Schedules and statement were materially inaccurate. $200,000 of extraordinary income in the year before Chapter 13 filing was invested in stock market and to purchase an expensive home rather than paying creditors. “Mere dismissal is not an adequate remedy for that pattern of conduct that includes the filing of this case. . . . [T]he appropriate remedy is to dismiss the case with prejudice to the debtor filing a petition in any bankruptcy court in any chapter for a period of one year after the dismissal of this case.”); In re Pickeral, 267 B.R. 1, 2–6 (Bankr. D.D.C. 2001) (Chapter 13 petition purposefully filed in wrong venue because of insufficient time to file in correct venue before a foreclosure sale is dismissed with prejudice to refiling for 180 days. Debtor signed petition at 9:50 a.m. “Her counsel did not want to take the risk of attempting to drive to Greenbelt, Maryland, and possibly being too late to file the petition before the foreclosure sale was completed. . . . So her counsel filed the petition in [the District of Columbia] at 10:01 a.m., before the foreclosure sale time of 10:12 a.m. . . . The courts should not transfer venue when a case is intentionally filed in a wrong district. . . . Although generally a dismissal of a civil action for lack of proper venue is without prejudice, this bankruptcy case is different. . . . But for the deliberate filing of this case in a wrong venue, the foreclosure sale would likely have been completed. To prevent foreclosure she had an obligation to file her petition before the scheduled time of the foreclosure sale and in a district in which she in good faith believed venue existed. This she failed to do. Cause therefore exists to dismiss this case with prejudice for 180 days.”); In re Campbell, 266 B.R. 709 (Bankr. W.D. Ark. 2001) (Failure to file necessary documents in response to “Order Regarding Deficiencies” in third Chapter 13 petition filed within five months warrants dismissal with prejudice to refiling for 180 days.); In re Vanfossen, 258 B.R. 814 (Bankr. N.D. Ala. 2001) (Eighth Chapter 13 petition in less than six years is dismissed with prejudice to refiling for 180 days and with sanction that debtor pay moving creditor’s attorney’s fees. Eighth case was filed in violation of order dismissing seventh case with prejudice to refiling for 180 days. Debtor refiled in a different division of the bankruptcy court, failed to appear at meeting of creditors and made no payments. Debtor engineered two Chapter 7 discharges in fewer than six years by filing and converting Chapter 13 cases in different divisions.); In re Tolbert, 258 B.R. 387, 390 (Bankr. W.D. Mo. 2001) (On Chapter 13 trustee’s motion, debtor’s eighth petition filed to stop condemnation and foreclosure actions is dismissed with this sanction: “Debtor Richard Charles Tolbert, or any entity controlled by debtor, is enjoined from filing any further bankruptcy cases for a period of three years without leave of this Court.”); In re Neiman, 257 B.R. 105, 110 (Bankr. S.D. Fla. 2001) (Chapter 13 debtor has absolute right to dismiss notwithstanding a competing motion to convert; however, substantial evidence that the debtor is abusing the bankruptcy system supports dismissal with prejudice: “It is . . . incumbent upon the Court to preserve the integrity of its process. To that end the Court exercises its discretion pursuant to 11 U.S.C. § 105 to grant the Debtor’s Motion to Dismiss with Prejudice to the Debtor filing another bankruptcy petition in any jurisdiction for two years.”); In re Mitchell, 255 B.R. 345, 365 (Bankr. D. Mass. 2000) (Cause for dismissal with prejudice to filing a Chapter 13 or Chapter 11 petition for one year that the debtors filed an identical Chapter 13 case during the 180-day prohibition on refiling in a prior order and debtors are ineligible based on a prepetition judgment for $275,000. “[T]his conduct demonstrates the Debtors’ profound disrespect for and disregard of the Bankruptcy Code and Bankruptcy Rules, reveals their intention to manipulate bankruptcy law for purposes other than repayment of debt, and supports the decision of this Court . . . to prohibit the Debtors from refiling under any Chapter of the Bankruptcy Code for a period longer than 180 days.”); In re McNichols, 254 B.R. 422, 436 (Bankr. N.D. Ill. 2000) (After denial of confirmation of third amended plan, “the instant case is dismissed with prejudice and the Debtor is prohibited from filing another bankruptcy case in any chapter for a period of one year from the date this Opinion and Order are docketed.” Debtor used inconsistent testimony and schedules to mislead through four attempts at confirmation.), motion to alter or amend denied, 255 B.R. 857 (Bankr. N.D. Ill. 2000); In re Bertelt, 250 B.R. 739, 748–50 (Bankr. M.D. Fla. 2000) (Tax protestor’s third bankruptcy case is dismissed with prejudice to refiling for 180 days; debtor’s claim that Florida was a “foreign country” was utterly without merit, and second Chapter 13 case was effort to get better result than rejection of typical tax protestor arguments that occurred in the first case. “The usual remedy for a bad faith filing is dismissal ‘with prejudice,’ which works to prohibit the filing by a debtor of any case under Title 11. The authority for such a dismissal arises under § 105(a) . . . . [W]here a debtor has attempted to abuse the Bankruptcy Code in connection with his continued failure to file proper tax returns during the pendency of his bankruptcy case, courts have dismissed Chapter 13 petitions with prejudice for various lengths of time. . . . [T]he Motion to Dismiss . . . should be granted, with prejudice, for a period of 180 days.”); In re Penny, 243 B.R. 720, 727, 729–30 (Bankr. W.D. Ark. 2000) (Fifth Chapter 13 petition in 14 months is dismissed with prejudice: “Debtor is enjoined, for a period of two years from the date of this Opinion and Order, from filing any bankruptcy petition based on reorganization, whether that might be in Chapters 11, 12, or 13. . . . Additionally, this Debtor is barred from any access whatsoever to the bankruptcy system for a period of 180 days, as provided in 11 U.S.C. § 109(g).” Creditors are awarded sanctions under Rule 9011 including attorneys’ fees and expenses. “Section 349(a) dismissal with prejudice should occur only when the debtor’s conduct is particularly egregious and only after full opportunity for a hearing. . . . A section 349 injunction may issue indefinitely into the future, as the Ninth Circuit held in [Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir. 1999)], or it may issue only for a time certain. . . . Additionally, debtors may be barred from any access whatsoever to the bankruptcy system for a period of six months. Section 109(g).”); In re Mattson, 241 B.R. 629, 640 (Bankr. D. Minn. 1999) (Cause for dismissal with bar to refiling for nine months that debtors filed three bankruptcy cases in bad-faith effort to stop collection of large state court judgment for racial discrimination, debtors transferred assets and debtors engaged in a “consistent pattern of activities to frustrate collection of this judgment and manipulate the bankruptcy system. Based on the bad faith of the Debtors, . . . a bar on their future ability to file a bankruptcy petition is warranted.”); In re Tornheim, 239 B.R. 677, 678 (Bankr. E.D.N.Y. 1999) (There is cause for dismissal with prejudice to refiling for two years in any bankruptcy court in the United States: “[T]he Debtor filed the instant case as a facile alternative to posting a bond to stay the foreclosure of his home. Utilizing the automatic stay to stave off foreclosure without a concomitant attempt to repay debt is an untenable abuse of the Bankruptcy Code which this Court will not countenance.”); In re Davis, 239 B.R. 305, 306 (Bankr. D. Md. 1999) (Pro se tax protestor’s fifth bankruptcy case is dismissed “with prejudice for a year in order to enable the parties to work out their disputes.”); In re McCoy, 237 B.R. 419, 422–23 (Bankr. S.D. Ohio 1999) (Debtor’s eighth bankruptcy case is dismissed with prejudice to refiling anywhere, at any time, and all scheduled debts are permanently excepted from discharge; debtor is ordered to pay $1,000 pursuant to Bankruptcy Rule 9011. “The Debtor has filed eight pro se chapters 7 and 13 petitions over an eight-year period . . . failed to file the requisite schedules, statements of affairs and plan, and has failed to attend creditors’ meetings. The Debtor has filed subsequent bankruptcy cases in violation of orders precluding filings . . . . The Debtor has failed to accurately disclose his prior bankruptcy filings, and has used different names and social security numbers. . . . [H]e has not been deterred from his abusive filing where this Court has repeatedly restricted the ability to file another case. The Court is convinced, absent extraordinary measures, that the Debtor will continue to compromise the bankruptcy process.”); In re Buchanan, 225 B.R. 672, 678 (Bankr. D. Minn. 1998) (Petition filed in bad faith is dismissed, and debtor is “barred from filing another bankruptcy petition under any chapter of the Bankruptcy Code for 180 days from the date of this Order.” Bad-faith finding was based on errors and misleading statements in the statements and schedules and a prepetition course of conduct by the debtors to defeat collection by taxing authorities.); In re Graffy, 216 B.R. 888, 891–92 (Bankr. M.D. Fla. 1998) (Tax protestor’s third Chapter 13 case is voluntarily dismissed with prejudice conditioned that “the Debtor is barred from filing any future bankruptcy case in any jurisdiction which seeks relief from any claim filed by the IRS concerning the Debtor’s tax obligations for a period of two years from the date this Order becomes final.” Debtor filed intentionally false statements and schedules, failed to reveal income and assets, transferred assets without consideration and without revealing the transfers in the statements and schedules, and the debtor’s “sole motive in filing his own three bankruptcy cases and inspiring his spouse’s bankruptcy filing was either to circumvent this Court’s Orders regarding the filing of his tax returns or interrupt the collection efforts of the IRS.”); In re Martin, 215 B.R. 119 (Bankr. N.D. Tex. 1997) (Third Chapter 13 case filed by the debtor to stop a mortgage foreclosure is dismissed with prejudice to refiling by the debtor or by any relative or girlfriend or related entity of the debtor for a period of 180 days, and “in rem” relief from the stay is granted with respect to the debtor’s real property.); In re Robertson, 206 B.R. 826, 829–31 (Bankr. E.D. Va. 1996) (Grants motion to dismiss third Chapter 13 case with prejudice to refiling for 417 days. Debtor filed three Chapter 13 cases in 15 months to contest tax claims. Administration of each case was delayed by the debtor’s motions to continue, and debtor failed to file tax returns during cases. IRS moved to dismiss with prejudice. With respect to procedure, “the Court can find no specific authority for labeling [the motion to dismiss with prejudice] as an injunction requiring an adversary proceeding under B.R. 7001(7). To the contrary, motions to dismiss with prejudice have been the customary procedure in instances of abuse of the system for enjoining the debtor from re-filing for a certain amount of time, even beyond the 180 day mark.” On the merits, “[b]ecause we have determined that a motion to dismiss with prejudice beyond 180 days is procedurally appropriate, we find no sound reason to set an arbitrary limit to the permissible duration of a dismissal with prejudice. . . . When granting a dismissal with prejudice, the Court must rely on § 105(a), § 109(g) and § 349(a) . . . . There is a disagreement among the Circuits over whether a bankruptcy court can dismiss with prejudice under § 105 for cause other than those listed in § 109(g) while not violating § 349. Yet, to this Court it is clear that a bankruptcy court is within its equitable powers in dismissing a case with prejudice ‘for cause, or otherwise’ in accordance with § 349(a). . . . It was clear to this Court from the debtor’s testimony and by his actions in his three bankruptcies, that he was using the bankruptcy process as bargaining leverage purely to delay the payment of his debt to the IRS. . . . We believe there is strong evidence of bad faith on the part of the debtor and find this behavior deserving of a dismissal with prejudice . . . to his right to re-file a bankruptcy petition for a period of 417 days, the actual time that he has unreasonably delayed the IRS and his other creditors.”); In re Koval, 205 B.R. 72, 76 (Bankr. N.D. Tex. 1996) (Chapter 13 case is “dismissed with an injunction under 11 U.S.C. § 105(a) enjoining Debtors from filing a bankruptcy anywhere in the United States for two years.” Cause for dismissal that debtors failed to file postpetition federal tax returns and failed to pay postpetition taxes. Debtors filed Chapter 13 case in 1991 soon after discharge in a Chapter 7 case. IRS was only real creditor. Debtors sat in the Chapter 13 case from 1991 until 1996 without filing tax returns or paying postpetition taxes. By the end of the case, the debtors owed more than $500,000 in pre- and postpetition taxes, not including penalties and interest. Although debtors were current on payments under the confirmed plan, failure to file tax returns violated “the spirit” of a 1993 general order that required timely filing of all postpetition federal tax returns in Chapter 13 cases.); In re Spear, 203 B.R. 349, 353–54 (Bankr. D. Mass. 1996) (Bankruptcy court has authority under § 105(a) to dismiss Chapter 13 case with prejudice to refiling for 180 days based on debtor’s filing of three serial Chapter 13 petitions without statements and schedules and debtor’s concession that she intentionally filed the three petitions to stay foreclosure with the intent to dismiss when necessary. “Courts are divided over whether the introductory language of § 349(a) . . . applies only to the court’s power to bar a debtor’s discharge in subsequent cases, or whether it applies to the entire section including a dismissal with prejudice. . . . [T]he Court agrees with the majority of cases which hold that the language ‘unless the court, for cause, orders otherwise,’ allows the court to bar subsequent filings for cause. Therefore, even if the actions of the Debtor did not constitute the ‘willful failure’ to prosecute the case, this Court maintains sufficient authority to bar a refiling for at least a limited period of time under the terms of § 349(a). . . . The bankruptcy court’s authority to dismiss a case with prejudice also arises under § 105(a). . . . [D]ismissal of this case with prejudice does not impair the Debtor’s right of dismissal pursuant to § 1307(b). Although § 1307(b) appears to give a debtor the right to dismiss a chapter 13 case at any time, the court maintains authority to condition dismissal or even to convert a case to Chapter 7 when appropriate. . . . A debtor’s right to dismissal under § 1307(b) does not mean that the Debtor can use the commencement and voluntary withdrawal of her chapter 13 case as a tactic to harass and frustrate her creditors.”).

 

24  See In re Robertson, 206 B.R. 826, 829–31 (Bankr. E.D. Va. 1996) (“[M]otions to dismiss with prejudice have been the customary procedure in instances of abuse of the system for enjoining the debtor from re-filing for a certain amount of time, even beyond the 180 day mark. . . . [A] motion to dismiss with prejudice beyond 180 days is procedurally appropriate.”).

 

25  See Fed. R. Bankr. P. 7001 (“An adversary proceeding is governed by the rules of this Part VII. The following are adversary proceedings: . . . (4) to object to or revoke a discharge, . . . (6) to determine the dischargeability of a debt.”).

 

26  See, e.g., In re Koval, 205 B.R. 72, 76 (Bankr. N.D. Tex. 1996) (Chapter 13 case is “dismissed with an injunction under 11 U.S.C. § 105(a) enjoining Debtors from filing a bankruptcy anywhere in the United States for two years.”).

 

27  See Fed. R. Bankr. P. 7001 (“An adversary proceeding is governed by the rules of this Part VII. The following are adversary proceedings: . . . (7) to obtain an injunction or other equitable relief.”).

 

28  See, e.g., In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003) (In sixth bankruptcy case in six years filed by the debtor or the debtor’s nonfiling spouse, for procedural reasons the bankruptcy court declines to enjoin the nonfiling spouse from filing a future bankruptcy case but grants in rem stay relief with respect to real property that is property of the debtor’s Chapter 13 estate.); In re Norley, No. 01-37689DWS, 2002 WL 1752280, at *3–*5 (Bankr. E.D. Pa. June 24, 2002) (unpublished) (In fifth bankruptcy case by debtor and/or debtor’s nonfiling spouse, nonfiling spouse is enjoined from refiling for 180 days without court permission based on consent to bankruptcy court jurisdiction. “[T]his case was the fifth bankruptcy case filed by Mary and/or Michael without the achievement of any legitimate bankruptcy purpose. . . . Michael has submitted himself to the jurisdiction of this Court. He did not object to this Court’s jurisdiction but rather insisted that he be allowed to participate in the hearing and was allowed to do so specifically because relief was being sought against him. . . . Michael has waived any requirement that the request for a bar order be sought through a formal adversary proceeding.”).

 

29  See, e.g., In re Dulisse, No. CIV.A. 01-1385, 2001 WL 769994 (E.D. Pa. July 5, 2001) (Third Chapter 13 petition filed solely to stop a foreclosure sale is dismissed with “prospective relief” that the debtor is prohibited to file another bankruptcy petition for 180 days.); In re Torvik, 293 B.R. 795, 798 (Bankr. M.D. Fla. 2003) (Debtor’s use of $1,500 refund from first Chapter 13 case to pay attorney’s fees for second Chapter 13 case is bad faith; bankruptcy court dismisses second case with condition that debtor “shall not be permitted to re-file within 180 days of the entry of this Order.”); In re Green, No. 5:02-BK-18966E, 2002 WL 32114474 (Bankr. E.D. Ark. Oct. 30, 2002) (unpublished) (History of six bankruptcy case in less than three years justifies dismissal with condition that debtor is prohibited from refiling for 180 days.); In re Glenn, 288 B.R. 516 (Bankr. E.D. Tenn. 2002) (Abuse of the bankruptcy process by holding a mortgage lender hostage through three Chapter 13 cases filed on the eve of foreclosure sales when debtor did not appear at meetings of creditors and failed to make payments justifies a bar to refiling for 180 days.); In re Lami, No. 02-36595DWS, 2003 WL 262484 (Bankr. E.D. Pa. Jan. 2, 2003) (unpublished) (Filing ninth Chapter 13 case during a period when the debtor was barred from filing bankruptcy by the dismissal order in a prior case justifies a bar to refiling for 180 days.); In re Duruji, 287 B.R. 710 (Bankr. S.D. Ohio 2003) (Debtor is precluded from filing bankruptcy for a period of 180 days based on three Chapter 13 cases in eight months.); In re Norley, No. 01-37689DWS, 2002 WL 1752280 (Bankr. E.D. Pa. June 24, 2002) (unpublished) (Debtor and debtor’s nonfiling spouse are enjoined from refiling for 180 days based on a cycle of five bankruptcy filings, dismissals and refilings with no purpose other than to stop a bank from exercising its state law remedies.); In re Dent, 275 B.R. 625 (Bankr. M.D. Ala. 2002) (Dismissal of second Chapter 13 with prejudice to refiling for 180 days is appropriate when second petition was filed less than two months after dismissal of prior Chapter 13 case, debtor failed to commence making payments and debtor failed to reveal prior case.); In re Pickeral, 267 B.R. 1 (Bankr. D.D.C. 2001) (Chapter 13 petition purposefully filed in wrong venue because of insufficient time to file in correct venue before a foreclosure sale is dismissed with prejudice to refiling for 180 days.); In re Bertelt, 250 B.R. 739, 748–50 (Bankr. M.D. Fla. 2000) (Tax protestor’s third bankruptcy case is dismissed with prejudice to refiling for 180 days. “The usual remedy for a bad faith filing is dismissal ‘with prejudice,’ which works to prohibit the filing by a debtor of any case under Title 11. The authority for such a dismissal arises under § 105(a) . . . . [W]here a debtor has attempted to abuse the Bankruptcy Code in connection with his continued failure to file proper tax returns during the pendency of his bankruptcy case, courts have dismissed Chapter 13 petitions with prejudice for various lengths of time. . . . [T]he Motion to Dismiss . . . should be granted, with prejudice, for a period of 180 days.”); In re Buchanan, 225 B.R. 672, 678 (Bankr. D. Minn. 1998) (Petition filed in bad faith is dismissed, and debtor is “barred from filing another bankruptcy petition under any chapter of the Bankruptcy Code for 180 days from the date of this Order.” Bad-faith finding was based on errors and misleading statements in the statements and schedules and a prepetition course of conduct by the debtors to defeat collection by taxing authorities.); In re Fernandez, 212 B.R. 361 (Bankr. C.D. Cal. 1997) (In a chronicle of five bankruptcy cases by related or affiliated debtors filed “in concert” and “surreptitiously” to frustrate a foreclosure sale, it is appropriate for clerk of bankruptcy court, consistent with local rules, to dismiss Chapter 13 petition with prejudice to refiling for 180 days after written notice that petitions, statements and schedules are deficient.); In re Spear, 203 B.R. 349 (Bankr. D. Mass. 1996) (Bankruptcy court has authority under § 105(a) to dismiss Chapter 13 case with prejudice to refiling for 180 days based on debtor’s filing of three serial Chapter 13 petitions without statements and schedules and debtor’s concession that she intentionally filed the three petitions to stay foreclosure with the intent to dismiss when necessary.).

 

30  See, e.g., Javens v. Ruskin, No. 99-74189, 2000 WL 1279189 (E.D. Mich. Aug. 24, 2000) (Bankruptcy court did not abuse its discretion by ordering an 18-month bar to future filings.), aff’d, No. 00-2374, 2001 WL 1450676 (6th Cir. Nov. 9, 2001) (unpublished); In re Ortiz, 200 B.R. 485 (D.P.R. 1996) (dismissal with prejudice to refiling for one year); Stathatos v. United States Trustee (In re Stathatos), 163 B.R. 83 (N.D. Tex. 1993) (dismissal with prejudice to refiling for 24 months); In re Lesane, 301 B.R. 625 (Bankr. M.D. Ga. 2003) (Debtor barred from filing bankruptcy for three years unless debtor first seeks court approval.); In re Fleury, 294 B.R. 1 (Bankr. D. Mass. 2003) (Refiling barred for 360 days.); In re Jones, 289 B.R. 436 (Bankr. M.D. Ala. 2003) (Debtor enjoined from filing for five years.); In re Pettey, 288 B.R. 14, 21 (Bankr. D. Mass. 2003) (Debtor barred “for a period of three years from the date of this order.”); In re LeGree, 285 B.R. 615, 621 (Bankr. E.D. Pa. 2002) (Debtor precluded from refiling for one year and, thereafter, “only with the Court’s permission.”); In re Rusher, 283 B.R. 544 (Bankr. W.D. Mo. 2002) (Debtor enjoined from refiling for three years.); In re Williams, No. 02-31639, 2002 WL 1477634 (Bankr. W.D.N.C. May 31, 2002) (unpublished) (Debtor enjoined for a period of one year.); In re Shaheen, 268 B.R. 455 (Bankr. E.D. Va. 2001) (Dismissal with prejudice to refiling for one year.); In re Tolbert, 258 B.R. 387 (Bankr. W.D. Mo. 2001) (Injunction prohibiting filing any bankruptcy case for three years without leave of court.); In re Neiman, 257 B.R. 105 (Bankr. S.D. Fla. 2001) (Dismissal with prejudice for two years.); In re Mitchell, 255 B.R. 345 (Bankr. D. Mass. 2000) (Dismissal with prejudice to filing for one year.); In re McNichols, 254 B.R. 422 (Bankr. N.D. Ill.) (Dismissal with prejudice to filing for one year.), motion to alter or amend denied, 255 B.R. 857 (Bankr. N.D. Ill. 2000); In re Penny, 243 B.R. 720 (Bankr. W.D. Ark. 2000) (Injunction prohibiting bankruptcy petition based on reorganization for a period of two years.); In re Mattson, 241 B.R. 629 (Bankr. D. Minn. 1999) (nine-month bar to refiling); In re Tornheim, 239 B.R. 677 (Bankr. E.D.N.Y. 1999) (dismissal with prejudice to refiling for two years); In re Davis, 239 B.R. 305 (Bankr. D. Md. 1999) (dismissal with prejudice for one year); In re Graffy, 216 B.R. 888 (Bankr. M.D. Fla. 1998) (dismissal with prejudice for a period of two years); In re Robertson, 206 B.R. 826 (Bankr. E.D. Va. 1996) (dismissal with prejudice to refiling for 417 days); In re Koval, 205 B.R. 72 (Bankr. N.D. Tex. 1996) (dismissal with an injunction barring refiling for two years); In re Herrera, 194 B.R. 178 (Bankr. N.D. Ill. 1996) (dismissal with prejudice to refiling within one year); In re Gros, 173 B.R. 774 (Bankr. M.D. Fla. 1994) (Debtor is barred from filing another bankruptcy petition for two years.); In re Belden, 144 B.R. 1010 (Bankr. D. Minn. 1992) (condition prohibiting the filing of any bankruptcy for approximately two years); In re Dilley, 125 B.R. 189 (Bankr. N.D. Ohio 1991) (Debtor is prohibited from filing Chapter 11 or Chapter 13 case within 12 months.).

 

31  See, e.g., In re Privitera, No. 03-1460DWS, 2003 WL 21460027 (Bankr. E.D. Pa. June 12, 2003) (unpublished) (Eighth bankruptcy case is dismissed with indefinite bar to refiling without court permission.); In re LeGree, 285 B.R. 615, 621 (Bankr. E.D. Pa. 2002) (Debtor precluded outright from refiling for a period of one year and, “thereafter, only with the Court’s permission.”); In re McCoy, 237 B.R. 419 (Bankr. S.D. Ohio 1999) (Debtor’s eighth bankruptcy case is dismissed with prejudice to refiling at any time.); In re Casse, 219 B.R. 657, 663 (Bankr. E.D.N.Y. 1998) (Dismissal of prior Chapter 11 case “with prejudice” rendered the Debtor ineligible to file any subsequent Chapter 13 petition.), aff’d, 198 F.3d 327 (2d Cir. 1999); In re Maurice, 167 B.R. 114 (Bankr. N.D. Ill. 1994) (Chapter 13 case is dismissed “with prejudice to filing any subsequent bankruptcy case without prior court approval” when petition was filed to stop collection of a judgment declared nondischargeable in a prior Chapter 13 case that was converted to Chapter 7, the second Chapter 13 case was filed to avoid posting a bond for the appeal of the judgment of nondischargeability in the prior bankruptcy case, “the purpose of filing this case was solely to delay,” the debtor failed to timely file a plan or schedules and statements, the debtor was not forthcoming with the bankruptcy court and creditors and no creditors are listed other than the holder of the nondischargeable judgment.).

 

32  See, e.g., In re Roeben, 294 B.R. 840, 845 (Bankr. E.D. Ark. 2003) (Debtor barred from filing bankruptcy for three years, “unless debtor first seeks and receives court approval.”); In re Privitera, No. 03-1460DWS, 2003 WL 21460027 (Bankr. E.D. Pa. June 12, 2003) (unpublished) (Eighth bankruptcy filing is dismissed with bar to refiling without court permission.); In re Lami, No. 02-36595DWS, 2003 WL 262484 (Bankr. E.D. Pa. Jan. 2, 2003) (unpublished) (Ninth Chapter 13 filing is dismissed with bar to refiling for 180 days without leave of court.); In re LeGree, 285 B.R. 615, 621 (Bankr. E.D. Pa. 2002) (After 10 or 11 filings between 1983 and 2001, debtor is “precluded from refiling for a period of one year and, thereafter, only with the Court’s permission.”); In re Norley, No. 01-37689DWS, 2002 WL 1752280 (Bankr. E.D. Pa. June 24, 2002) (unpublished) (Fifth bankruptcy case by debtor and/or debtor’s nonfiling spouse is dismissed with injunction prohibiting either from refiling for 180 days without court permission.).

 

33  Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 334 n.4 (2d Cir. 1999) (In a note, “although the bankruptcy court’s order did not provide a time after which the debtor could once again file a bankruptcy petition, . . . it is clear from the bankruptcy court’s decision . . . that it only intended to bar temporarily the debtor from filing another petition before Key Bank had an opportunity to foreclose on the Property. . . . We therefore need not reach the question of whether a bankruptcy court could permanently preclude a serial filer from filing bankruptcy petitions.”).

 

34  237 B.R. 419 (Bankr. S.D. Ohio 1999).

 

35  237 B.R. at 422–23. Accord In re Jones, 289 B.R. 436, 440 (Bankr. M.D. Ala. 2003) (“Debtor is enjoined from filing a bankruptcy petition anywhere in the United States.”); In re Duruji, 287 B.R. 710 (Bankr. S.D. Ohio 2003) (Debtor precluded from filing bankruptcy “anywhere” for a period of 180 days.); In re Williams, No. 02-31639, 2002 WL 1477634, at *1 (Bankr. W.D.N.C. May 31, 2002) (unpublished) (Debtor enjoined from filing a petition “in any United States Bankruptcy Court.”); In re Shaheen, 268 B.R. 455, 462 (Bankr. E.D. Va. 2001) (Dismissal with prejudice to the debtor’s filing a petition “in any bankruptcy court.”); In re Neiman, 257 B.R. 105, 110 (Bankr. S.D. Fla. 2001) (Dismissal with prejudice to filing “in any jurisdiction.”); In re Penny, 243 B.R. 720, 727 (Bankr. W.D. Ark. 2000) (Debtors are “barred from any access whatsoever to the bankruptcy system.”); In re Tornheim, 239 B.R. 677 (Bankr. E.D.N.Y. 1999) (dismissal with prejudice to refiling in any bankruptcy court in the United States); In re Graffy, 216 B.R. 888 (Bankr. M.D. Fla. 1998) (Debtor is barred from filing future bankruptcy case in any jurisdiction.); In re Koval, 205 B.R. 72 (Bankr. N.D. Tex. 1996) (Debtor is enjoined from filing bankruptcy anywhere in the United States.); In re Gros, 173 B.R. 774, 777 (Bankr. M.D. Fla. 1994) (Debtor is barred from filing bankruptcy petition “within the United States of America.”).

 

36  See, e.g., In re Lesane, 301 B.R. 625, 626 (Bankr. M.D. Ga. 2003) (Debtor enjoined for 36 months from filing any bankruptcy case under any chapter “in this Court.”); In re Green, No. 5:02-BK-18966E, 2002 WL 32114474 (Bankr. E.D. Ark. Oct. 30, 2002) (unpublished) (Debtor prohibited from refiling in the Eastern or Western Districts of Arkansas.).

 

37  See, e.g., Alfaro v. Vazquez (In re Alfaro), 221 B.R. 927 (B.A.P. 1st Cir. 1998) (Condition in order dismissing prior bankruptcy case that prohibited the debtor’s sister, mother and a related company from filing bankruptcy for at least one year did not include a prohibition against filing bankruptcy by the debtor, and the bankruptcy court did not find that the debtor was the same entity as his mother, sister or the related corporation. Debtor’s mother, sister and a related corporation filed seven voluntary bankruptcy petitions between 1994 and 1997 to stall foreclosure. Orders for “dismissal with prejudice” were entered in three of the prior cases prohibiting the debtor’s mother, the debtor’s sister and a related corporation from filing bankruptcy for one year. This debtor’s Chapter 13 petition was not prohibited by the prior orders of dismissal with prejudice, but bankruptcy court appropriately granted relief from the stay for cause.); In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003) (In sixth bankruptcy case in six years filed by the debtor or the debtor’s nonfiling spouse to frustrate a foreclosure, for procedural reasons bankruptcy court declines to enjoin nonfiling spouse from filing a future bankruptcy case but grants in rem stay relief with respect to the property.); In re Norley, No. 01-37689DWS, 2002 WL 1752280, at *5 (Bankr. E.D. Pa. June 24, 2002) (unpublished) (In fifth bankruptcy case by debtor and/or debtor’s nonfiling spouse, bankruptcy court enjoins debtor and nonfiling spouse from refiling for 180 days without court permission. “[A]bsent a bar from refiling against both Mary and Michael, the cycle of bankruptcy filings, dismissals and refilings, this being unsuccessful case number five, would continue and perpetuate an abuse of this Court and the bankruptcy law it administers.”); In re Tolbert, 258 B.R. 387, 390 (Bankr. W.D. Mo. 2001) (Debtor’s eighth petition filed to stop condemnation and foreclosure actions is dismissed with this sanction: “Debtor Richard Charles Tolbert, or any entity controlled by debtor, is enjoined from filing any further bankruptcy cases for a period of three years without leave of this Court.”); In re Martin, 215 B.R. 119 (Bankr. N.D. Tex. 1997) (Third Chapter 13 case filed by the debtor to stop a mortgage foreclosure is dismissed with prejudice to refiling by the debtor or by any relative or girlfriend or related entity of the debtor for a period of 180 days, and “in rem” relief from the stay is granted with respect to the debtor’s real property.); In re Felberman, 196 B.R. 678, 684 (Bankr. S.D.N.Y. 1995) (Although the debtor was not a party to her husband’s third bankruptcy case, order in husband’s case that any future bankruptcy filing by husband or wife would not result in an automatic stay is effective to preclude stay in future bankruptcy case filed by either husband or wife. Debtor and husband “engaged in a . . . pattern of conduct to prevent FNB from foreclosing on their home. Their long history of non-payment and serial filings simply underscores their unity of interest and purpose and fully justifies Judge Connelly’s October 17 order.”); Ulster Sav. Bank v. Kizelnik (In re Kizelnik), 190 B.R. 171, 184 (Bankr. S.D.N.Y. 1995) (Chapter 13 petition filed to stop foreclosure on debtor’s grandparents’ house is dismissed with provision “that any further filing under the Bankruptcy Code by any person claiming an interest in the Stein House will not operate as an automatic stay on USB’s right to foreclose in the absence of a further order by this Court on notice to USB.” Debtor was tenant with option to purchase grandparents’ house. Grandparents filed two Chapter 13 petitions to stop foreclosure sales. When bank persisted, granddaughter filed Chapter 13 on the eve of foreclosure. Granddaughter was without standing to affect the mortgage on her grandparents’ house. Granddaughter’s Chapter 13 case was dismissed with prejudice.).

 

38  See, e.g., In re Shaheen, 268 B.R. 455, 462 (Bankr. E.D. Va. 2001) (“[T]he appropriate remedy is to dismiss the case with prejudice to the debtor filing a petition in any bankruptcy court in any chapter for a period of one year after the dismissal of this case.”); In re Nosker, 267 B.R. 555 (Bankr. S.D. Ohio 2001) (Case is dismissed with prejudice to refiling under any chapter for 180 days.); In re Tolbert, 258 B.R. 387, 390 (Bankr. W.D. Mo. 2001) (Debtor “is enjoined from filing any further bankruptcy cases for a period of three years without leave of this Court.”); In re Mitchell, 255 B.R. 345 (Bankr. D. Mass. 2000) (Dismissal with prejudice to filing a Chapter 13 or Chapter 11 petition for one year.); In re McNichols, 254 B.R. 422, 436 (Bankr. N.D. Ill.) (“Debtor is prohibited from filing another bankruptcy case in any chapter for a period of one year.”), motion to alter or amend denied, 255 B.R. 857 (Bankr. N.D. Ill. 2000); In re Penny, 243 B.R. 720, 727, 729–30 (Bankr. W.D. Ark. 2000) (“Debtor is enjoined, for a period of two years from the date of this Opinion and Order, from filing any bankruptcy petition based on reorganization, whether that might be in Chapters 11, 12, or 13. . . . Additionally, this Debtor is barred from any access whatsoever to the bankruptcy system for a period of 180 days.”); In re Buchanan, 225 B.R. 672, 678 (Bankr. D. Minn. 1998) (Debtor is “barred from filing another bankruptcy petition under any chapter of the Bankruptcy Code.”); Simmons v. Simmons (In re Simmons), 149 B.R. 586, 590 (Bankr. W.D. Mo. 1993) (On creditor’s motion to dismiss, court conditions dismissal that the pro se debtor is prohibited to file another bankruptcy petition under Chapter 11, 12 or 13 for 180 days, and the clerk of the bankruptcy court is directed not to accept any filing that violates the terms of the injunction. Court finds authority to issue this injunction “based on both the inherent authority of federal courts and the specific terms of the Bankruptcy Code. 11 U.S.C. § 109(g).” Case before the court was the debtor’s fourth, one Chapter 11 and three Chapter 13 cases. All four cases were filed on the eve of foreclosure, and each was either dismissed voluntarily or was dismissed for the debtor’s failure file documents.); In re Dilley, 125 B.R. 189, 198 (Bankr. N.D. Ohio 1991) (Debtor is prohibited to file a Chapter 11 or Chapter 13 case within 12 months “without having obtained the prior approval of this court . . . [and] approval will be granted by the court only upon a showing by the debtor that his circumstances have changed.”).

 

39  See, e.g., In re Lesane, 301 B.R. 625, 626 (Bankr. M.D. Ga. 2003) (Debtor enjoined from filing “any bankruptcy case under any chapter.”); In re Chadwick, 296 B.R. 876, 882 (Bankr. S.D. Ga. 2003) (Debt to ex-spouse declared nondischargeable in “any subsequent federal bankruptcy.”); In re Roeben, 294 B.R. 840 (Bankr. E.D. Ark. 2003) (Debtor barred from filing “for bankruptcy.”); In re Jones, 289 B.R. 436, 441 (Bankr. M.D. Ala. 2003) (Debtor enjoined “from filing a bankruptcy petition.”); In re Green, No. 5:02-BK-18966E, 2002 WL 32114474 (Bankr. E.D. Ark. Oct. 30, 2002) (unpublished) (Debtor prohibited from filing any bankruptcy cases.); In re Pettey, 288 B.R. 14 (Bankr. D. Mass. 2003) (Debtor barred from filing under any chapter of the Bankruptcy Code.); In re Duruji, 287 B.R. 710, 714 (Bankr. S.D. Ohio 2003) (Debtor “precluded from filing another bankruptcy case under any chapter.”); In re Williams, No. 02-31639, 2002 WL 1477634, at *1 (Bankr. W.D.N.C. May 31, 2002) (unpublished) (Debtor enjoined from “filing a petition for relief.”).

 

40  See § 334.1 [ Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings ] § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings. See, e.g., Jeffries v. G.E. Capital Mortgage Servs., Inc. (In re Jeffries), No. 94 C 2781, 1995 WL 12288 (N.D. Ill. Jan. 11, 1995) (Monetary sanctions for the filing of a frivolous bankruptcy case were imposed at dismissal of seventh bankruptcy case filed to stop mortgage foreclosure sale.); Stathatos v. United States Trustee (In re Stathatos), 163 B.R. 83 (N.D. Tex. 1993) (Debtors are ordered to pay $500 to the bankruptcy court clerk as a sanction under Bankruptcy Rule 9011 and 11 U.S.C. § 105(a) where pro se debtors’ third bankruptcy petition was filed four days after dismissal of the second for the purpose of preventing an eviction proceeding.); In re Pettey, 288 B.R. 14, 23–24 (Bankr. D. Mass. 2003) (Debtor and debtor’s attorney are sanctioned for filing Chapter 13 petition for an ineligible debtor. Debtor failed to schedule large debt to former spouse and listed wrong address for a claim exceeding $500,000 based on a judgment for sexual assault and battery. Debtor knew the address was incorrect. Debtor’s counsel knew unsecured debt exceeded the eligibility limit and counsel offered no “nonfrivolous basis” for eligibility. Bankruptcy court dismissed “with prejudice to the later discharge in bankruptcy of the Debtor’s existing obligations” to the sexual assault creditors and the former spouse, citing § 349(a). Court also barred the debtor from any further bankruptcy filing under any chapter of the Bankruptcy Code “for a period of three years from the date of this order.” Debtor’s counsel ordered to pay attorney fees totaling $3,000 to trustee and to attorney for the sexual assault creditors.); In re Hasan, 287 B.R. 308, 312 (Bankr. D. Conn. 2002) (Voluntary dismissal of second case and simultaneous filing of third case to avoid adverse ruling on a claim objection in the second case provokes dismissal with prejudice, and sanctions for attorney fees and costs totaling $6,589.50: “since this debt arises as an abuse of the bankruptcy process, it is intended to be nondischargeable in any reopened case or future bankruptcy case the debtors may commence.”); In re Dent, 275 B.R. 625 (Bankr. M.D. Ala. 2002) (Second Chapter 13 case dismissed with prejudice to refiling for 180 days and debtor’s attorney sanctioned for $500 under Bankruptcy Rule 9011 when second petition was filed less than two months after dismissal of prior Chapter 13 case, debtor failed to commence making payments in both cases, second petition failed to reveal prior case and statement of financial affairs in second case failed to reveal prepetition repossession that debtor’s attorney claimed caused the hasty second filing.); In re Vanfossen, 258 B.R. 814 (Bankr. N.D. Ala. 2001) (Eighth Chapter 13 petition in less than six years is dismissed with sanction that debtor pay moving creditor’s attorney’s fees.); In re Penny, 243 B.R. 720 (Bankr. W.D. Ark. 2000) (Fifth Chapter 13 petition in 14 months is dismissed with prejudice, and creditors are awarded sanctions under Rule 9011, including attorney’s fees and expenses.); In re McCoy, 237 B.R. 419 (Bankr. S.D. Ohio 1999) (Debtor’s eighth bankruptcy case is dismissed with prejudice to refiling anywhere, at any time and all scheduled debts are permanently excepted from discharge; debtor is ordered to pay $1,000 pursuant to Bankruptcy Rule 9011.); In re Graffy, 233 B.R. 894 (Bankr. M.D. Fla. 1999) (At dismissal, IRS is entitled to attorney fees as sanction under Rule 9011 for the debtor’s serial filings of Chapter 13 cases with knowingly false documents.); In re Grigsby, 233 B.R. 558 (Bankr. S.D. Fla. 1999) (At dismissal, sanctions are imposed under Rule 9011 in the amount of $1,575 for serial filings of Chapter 13 cases by the debtor and the debtor’s spouse to stop a foreclosure sale.); In re Robinson, 198 B.R. 1017 (Bankr. N.D. Ga. 1996) (Second Chapter 13 case is dismissed with prejudice to refiling for 180 days, and debtor and debtor’s attorney are ordered to pay attorney’s fees as sanctions for an abusive filing.); In re Armwood, 175 B.R. 779 (Bankr. N.D. Ga. 1994) (In fifth Chapter 13 case filed for the sole purpose of frustrating foreclosure, $500 was sanction imposed on the debtor and on debtor’s attorney under Bankruptcy Rule 9011.); In re Wainwright, 85 B.R. 456 (Bankr. N.D. Ohio 1988) (Sanctions are ordered when property was transferred to the debtor on the eve of the foreclosure sale.); In re McElveen, 78 B.R. 1005 (Bankr. D.S.C. 1987) (Bankruptcy Rule 9011 sanctions are imposed.); In re Bono, 70 B.R. 339 (Bankr. E.D.N.Y. 1987) (Sanctions including attorneys’ fees are ordered for third Chapter 13 petition filed to block foreclosure.); In re Wright, 54 B.R. 553 (Bankr. E.D. Pa. 1985) (involving surcharge of debtor’s counsel for fees and costs of foreclosure); In re Bolton, 43 B.R. 598 (Bankr. E.D.N.Y. 1984) (Counsel was ordered to refund attorneys’ fees.); In re Perez, 43 B.R. 530 (Bankr. S.D. Tex. 1984) (imposing costs and attorneys’ fees where counsel filed three Chapter 13 cases to prevent foreclosure); Snow v. Jones, 41 B.R. 263 (Bankr. C.D. Cal. 1984) (Sanction is ordered against debtor and counsel where debtor filed six petitions, including four Chapter 13s, in an effort to defeat foreclosure.); In re Gary, 38 B.R. 675 (Bankr. D. Md. 1984) (Sanctions are ordered under Bankruptcy Rule 9011 and under 28 U.S.C. § 1927.). But see In re Jones, 174 B.R. 8, 14 (Bankr. D.N.H. 1994) (Court refuses U.S. trustee’s request for monetary sanctions against debtor at dismissal of a “bad faith” filing. “This Court believes that, for sanctions to be meaningful, they must be enforceable. The Court has found that the debtor does not have the kind of stable income necessary to fund a chapter 13 plan and the debtor’s schedules show virtually no assets actually in the possession of the debtor. Monetary sanctions would further impose hardship upon the debtor’s family, which is not the purpose of imposing sanctions.”), aff’d per curiam, 77 F.3d 460 (1st Cir. 1996).

 

41  In re Tuckey, 222 B.R. 549, 551–52 (Bankr. N.D. Tex. 1998).

 

42  See also §§ 330.1 [ Absolute Right of Debtor? ] § 151.2  Absolute Right of Debtor? and 331.1 [ Strategic Considerations: Consequences of Voluntary Dismissal ] § 151.3  Strategic Considerations: Consequences of Voluntary Dismissal.

 

43  In re Jacobs, 43 B.R. 971 (Bankr. E.D.N.Y. 1984). Accord In re McCraney, 172 B.R. 868 (N.D. Ohio 1993) (Debtor’s right to dismiss a Chapter 13 case under § 1307(b) is subject to court’s inherent duty and power to guard against jurisdictional abuse. Bankruptcy court appropriately vacated order of dismissal after it learned that the debtor had dismissed the Chapter 13 case to avoid paying a workers’ compensation settlement into the plan. Debtor cannot use § 1307(b) to avoid “further investigation” by the bankruptcy court.); In re Whitten, 11 B.R. 333 (Bankr. D.D.C. 1981) (Debtor’s § 1307(b) right to dismiss is not to be construed in derogation of court’s inherent power to prevent abuse of judicial process.).

 

44  In re Houston, 36 B.R. 224 (Bankr. S.D.N.Y. 1983) (Court denies debtor’s request to dismiss the earlier filed of two pending Chapter 13 cases when relief from the stay had been granted in the earlier case and the debtor filed a second case in a different judicial district.). See also In re Barnes, 231 B.R. 482, 485 (E.D.N.Y. 1999) (Cause for dismissal and $500 sanction on debtor’s attorney that Chapter 13 petition was filed while prior Chapter 7 case was still open in an effort to stop a foreclosure proceeding. The Chapter 13 was the third case filed by the debtor and her husband and constituted bad faith. The “$500 fine was neither improper nor excessive given the findings . . . that the Chapter 13 petition was filed in bad faith.”).

 

45  In re Hollis, 150 B.R. 145 (D. Md. 1993) (Absent willful disregard of a court order, it is inappropriate to dismiss a bankruptcy case with prejudice for failure to comply with a local rule.).

 

46  In re Conley, 105 B.R. 116 (S.D. Fla. 1989).

 

47  In re Barrett, 149 B.R. 494, 501 (Bankr. N.D. Ohio 1993) (Court declines to condition dismissal because of “unique” facts. Case was open for four years while mortgage holder appealed confirmation. During the appellate period, the debtor made payments to the trustee totaling more than $25,000 but failed to make direct payments to the mortgage company, producing a postpetition default of more than $20,000. On remand after the appeal, the debtor failed to propose a feasible plan, and the court ordered the case dismissed, without conditions. The case was the debtor’s third Chapter 13 case, and the debtor had been sanctioned in prior cases for abusing the bankruptcy system, but “changed circumstances” justified the third filing. There was no evidence that the debtor lived extravagantly or misapplied the monies that the debtor failed to pay directly to the mortgage company during the appeal. Debtor’s failure to prosecute the third case, “though not excusable, does not appear willful.”).

 

48  See Umali v. Dhanani (In re Umali), 345 F.3d 818, 821–22 (9th Cir. 2003) (Although bankruptcy court in California subsequently modified its order that barred the debtor from refiling for 180 days, “subsequent modification of its order removing the 180-day bar could not operate nunc pro tunc fashion to divest the Dhananis of their rights to the property in Arizona.” Debtor was ineligible to file Chapter 13 in Arizona because of condition at dismissal of prior Chapter 13 case in California that the debtor was ineligible to refile for 180 days notwithstanding that California court later removed the bar to refiling.); In re Fritts, 280 B.R. 710 (Bankr. S.D. Ala. 2001) (Bankruptcy court is without authority to reduce 90-day injunction period imposed at dismissal of prior Chapter 13 case.).

 

49  See discussion of court-imposed conditions on eligibility to refile and § 109(g) beginning in § 24.1  Court-Imposed Restrictions on Eligibility to RefileSee also discussion of prospective relief from the stay in § 64.3  Prospective, In Rem and Automatic Relief from Stay.

 

50  184 B.R. 686 (Bankr. E.D. Pa. 1995).

 

51  184 B.R. at 690. Accord In re Barr, 263 B.R. 496, 499 (Bankr. E.D. Pa. 2001) (Debtor’s sixth bankruptcy case is dismissed with condition that no subsequent filing will stay a mortgage holder from foreclosure. With respect to an order dismissing the prior bankruptcy case: “If the purpose of that dismissal ‘with prejudice’ was to preclude forever any refiling, I will not enforce it under these circumstances.”).

 

52  185 B.R. 762 (Bankr. W.D. Tenn. 1995).

 

53  185 B.R. at 765.

 

54  177 B.R. 271, 272 (Bankr. W.D. Tenn. 1995) (Dismissal of Chapter 13 case in which a “drop dead” order had been entered did not prevent the automatic stay from coming into effect when the debtor refiled. In prior Chapter 13 case, order denying relief from the stay said: “‘[I]n the event this wage earner is dismissed, then debtor is prohibited from refiling as to National Mortgage Company unless she is able to show a change in circumstances.’” Case was dismissed, and debtor refiled on the same day the mortgage company conducted a foreclosure sale. Stay arose upon the refiling, notwithstanding the “drop dead” clause. Because the debtor refiled three hours before the foreclosure sale, Federal Land Bank of Louisville v. Glenn (In re Glenn), 760 F.2d 1428 (6th Cir. 1985), might permit the debtor to cure defaults. Debtor was entitled to opportunity to show change of circumstances to satisfy “drop dead” clause. Mortgage company was temporarily enjoined from evicting debtor.), rev’d on other grounds, 223 B.R. 684 (W.D. Tenn. 1998). Accord Friend v. Chemical Residential Mortgage Corp. (In re Friend), 191 B.R. 391, 393 (Bankr. W.D. Tenn. 1996) (Citing Norwest Financial Tennessee, Inc. v. Coggins (In re Coggins), 185 B.R. 762 (Bankr. W.D. Tenn. 1995), and Brengettcy v. National Mortgage Co. (In re Brengettcy), 177 B.R. 271 (Bankr. W.D. Tenn. 1995), order in third Chapter 13 case that “in the event of the dismissal of that case or in the event of relief from the automatic stay, the dismissal of the case or the lifting of the automatic stay would be with prejudice to the debtors’ refiling for 180 days as to Chemical Residential Mortgage Corporation” did not stop automatic stay from coming into effect in fourth case and did not prevent the bankruptcy court from determining that changed circumstances justified confirmation of plan in fourth case.).

 

55  See discussion beginning at § 152.1  Procedure, Timing and Form.

 

56  See discussion beginning at § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General.

 

57  S. Rep. No. 98-65, at 74 (1983).